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[2009] TASSC 118
Supreme Court of Tasmania
2009-12-18
Evans J
Original judgment source is linked above.
CITATION: Dobson v Jackson [2009] TASSC 118
PARTIES: DOBSON, Larissa Jennifer (by her next friend)
HEARING DATE: 16-20 March, 23-25 March, 30 March 2009
Damages - Particular awards of general damages - Tasmania - Brain damage and consequential disabilities sustained in vehicle accident - Awards $200,000 for general damages, $350,000 for loss of earning capacity and $1,350,000 for attendant care.
Judgment Number: [2009] TASSC 118
LARISSA JENNIFER DOBSON by her next friend LEANNE JACKSON
1 Larissa Dobson is 19 years of age. Some 4½ months after her birth, she suffered significant head injuries in a motor vehicle accident caused by the negligent driving of the defendant, Shane Jackson. Judgment has been entered by consent against the defendant in favour of Larissa, by her next friend, her mother, for damages to be assessed. This decision is the assessment of those damages.
2 The following details of Larissa's injuries and treatment are extracted from a report dated 14 June 2001 from Mr A Hunn, neurosurgeon. In the accident Larissa suffered a fracture of the right parietal bone (the roof of the skull) with intraparenchymal haemorrhage in the underlying brain. She developed left sided convulsive activity involving the hand and mouth. In June 1991, a CT scan revealed an early growing fracture which occurs when the dural has been breached in association with a fracture in a young child, and results in the fracture enlarging, producing a cranial defect of increasing transverse dimensions. As the growing fracture continued to enlarge, on 9 March 1992, Larissa underwent a surgical procedure in which the right frontoparietal dural defect was repaired. Notwithstanding that repair there was no decrease in the size of the skull defect so a split rib cranioplasty was performed on 8 December 1992. Larissa developed a post-traumatic seizure disorder and commenced Epilim, an anticonvulsant. On 3 March 1994 her split rib cranioplasty appeared sound, but it was noted that she was favouring her left arm somewhat, although her gait appeared normal. In March 1995 her mother reported that her speech was lagging behind that of her peers. Her seizures appeared to be under adequate control at that time, and the split rib cranioplasty was adequate, although somewhat irregular. A report on an occupational therapy assessment performed when Larissa was 5½ years of age, noted a number of areas in which she was functioning at a level below that of an average child of the same age. Below average fine motor skills and specific visual perception weaknesses were identified. In July 1996 speech pathology reported that Larissa had communication skills at the lower end of average for her age, but further noted that some individual tests indicated areas of very significant weakness, including oral language skills and phonological awareness skills. When Larissa was reviewed on 13 March 1997, she was continuing to suffer from three to four seizures a month. She was continuing on Tegretol. An occupational therapy assessment when Larissa was aged 7 years 2 months, identified extreme difficulty with writing and spelling, and also recognised difficulties with behaviour, including limited insight and reduced initiation. When reviewed at the age of 8 years, it was reported that Larissa continued to suffer from seizures occasionally. She had a relatively normal gait but abnormal motor function in the left hand in particular, and was noted to have developed progressively a tendency to hyper-extension of the proximal inter-phalangeal joints of the left hand. On 29 March 1999, Larissa underwent a remodelling cranioplasty to address the calvarial irregularities in her right frontoparietal region, which healed well and dramatically improved the cosmetic appearance of her skull.
3 In March 1999 Larissa was reviewed by Mr C Edwards, a plastic and hand surgeon, who carried out a volar plate arthroplasty procedure to deal with the dorsal subluxation at the proximal inter-phalangeal joint of Larissa's left ring finger. That condition recurred and on 21 February 2002, repeat procedures were performed on both Larissa's middle and ring fingers. On 9 April 2002, Dr Edwards reported that Larissa had a residual permanent disability as regards both upper and lower limbs, and that the underlying pathology was her brain injury. In substance he said that surgery was only a compromise to improve her function. On 12 December 2006, Dr Edwards reported that Larissa had significant muscle imbalance involving her upper left limb and hand and had undergone a number of procedures to correct a tendency towards hyper-extension and subluxation of the proximal inter-phalangeal joints of the fingers which had needed to be redone on a number of occasions in some fingers. The most recent procedure was on 25 January 2006 when a further tendon graft procedure had been undertaken on her left ring finger proximal inter-phalangeal joint. He said it was hoped with the cessation of growth, Larissa's joints would become somewhat less mobile and that the position of her proximal joints would be maintained but that further hyper-extension and subluxation is a possibility.
4 A report from Jennifer Ball dated 10 April 2007 was put into evidence. She is a physiotherapist who has a particular interest in hands and upper limbs. She became involved in the care of Larissa on 31 March 1999 when requested to provide splints and treatment for Larissa's left hand in an attempt to correct hyper-extension deformities in her proximal inter-phalangeal joints, that is, Swan neck deformities. She noted that since that time Larissa had had surgery on six occasions to tighten the palmar side of the joint, followed by protective splints and exercise. On each occasion, initial success was followed by stretching and recurrence of the problem due to overactive extension at times. She last saw Larissa in June 2006 at which time Larissa's joints were beginning to show signs of hyper-extension but not locking. Her opinion in April 2007 was that the prognosis for the hand remained poor. She said that further surgical intervention of the soft tissue was not really an option and that a last resort solution, if the joints continued to deteriorate, would be to permanently fuse the joints in a position of flexion. At least to the time of the hearing, Ms Ball's pessimistic prognosis had not come to fruition and Dr Edwards' hope that with the cessation of growth, Larissa's joints would become somewhat less mobile, seemed to be the case. The possibility of future problems with Larissa's left hand cannot however be discounted.
5 A CT scan performed on 7 September 2006 confirmed that Larissa was suffering from extensive atrophy in the right frontoparietal region.
6 As to what may flow from such an injury, several pages from Organic Psychiatry 'The Psychological Consequences of Cerebral Disorder', William Alyn Lishman, 3rd ed, were put into evidence. The following extracts are taken from that text at 17:
"Frontal lesions may confer distinctive changes of disposition and temperament subsumed under the term 'change of personality'. Most characteristic is disinhibition, with expansive over-familiarity, tactlessness, over-talkativeness, childish excitement ('moria') or prankish joking and punning ('Witzelsucht'). Social and ethical control may be diminished, with lack of concern for the future and for the consequence of actions. Sexual indiscretions and petty misdemeanours may occur, or gross errors of judgement with regard to financial and interpersonal matters. Sometimes there is marked indifference, even callous unconcern, for the feelings of others. Lack of insight on the part of the patient is characteristic. Elevation of mood is often seen, mainly as an empty and fatuous euphoria rather than as a true elation which communicates itself to the observer.
...
Parietal lobe lesions are associated with a rather bewildering variety of complex cognitive disturbances, including defects of language and number sense, defective appreciation of external space, and disorders of the body image."
7 Dr Robert Adler, a consultant psychiatrist, assessed Larissa in August 2007. His report dated 11 September 2007 was put into evidence and he also gave viva voce evidence. He said of the CT scan performed on 7 September 2006 that it confirmed that Larissa had very significant and substantial brain damage which has not been reversible. Whilst observing that the correlation between specific brain damage and functional outcome is not particularly strong, he noted that many of Larissa's symptoms were very consistent with extensive damage to the frontal lobes, as to which he said:
"The frontal lobes are associated with the higher cerebral functions that we associate with human beings, perhaps compared to other animals. Because the frontal lobes are the most recently developed and are extremely prominent in humans compared to other animals, even other primates let alone other non-primate species. And the frontal lobes are associated with development of judgment, the development of capacity for forward planning, emotional regulation and inhibition, ... a whole range ... of higher cerebral functions and particularly future planning and organizational skills are located primarily in the frontal lobes, as are inhibitory capacities which allow us to inhibit our behaviours if we believe they were inappropriate to a situation."
8 Dr G Markabawi, a general practitioner with the Somerset Medical Centre, reported on 15 March 2002 that Larissa had attended that surgery on 42 occasions, about 18 of which were with specific reference to her head injury and subsequent complications. One complication was post-traumatic epilepsy as to which she was receiving Epilim, which she would need to take for at least the next five to seven years and maybe the rest of her life. On 22 December 2006, he reported that Larissa had not had a seizure since April 2002 but was suffering from severe headaches every six to eight weeks. In October 2008 he signed a proof of evidence in which he said that he had prescribed Zoloft for Larissa for depressive symptoms from which she was suffering.
9 Throughout her life, Larissa has resided with her mother Leanne Jackson. Larissa has a half-brother, Cameron, aged 16, and a half-sister, Danyelle, aged14. The defendant is not Larissa's father. Leanne and the defendant separated about 12 years ago.
10 In the course of the hearing, counsel for both parties expressed concern about the publication of details about Larissa and her family which might have the effect of increasing Larissa's exposure and vulnerability to predators and the like. It was submitted that my reasons for judgment should be edited to that end. The course that I will adopt is to publish at large that portion of my reasons that deals with each head of damage, but publish to the parties alone a separate document containing that which I have prepared in relation to the evidence. As this document runs to 96 pages, the adoption of this course will benefit more purposes than privacy alone. The document deals with evidence from the following sources:
•
Larissa Dobson.
•
Leanne Jackson, Larissa's mother.
•
Jennifer Dobson, who is Larissa's grandmother. She is on occasions referred to in the evidence and in these reasons as Nan.
•
Tanya Brooks, who is Larisa's aunt and Leanne's sister.
•
Karen Stokes, who is Larissa's aunt and Leanne's sister.
•
Mikala Betts, who is Larissa's cousin and the daughter of Karen Stokes.
•
School reports and related documents.
•
Michael Marriott, a clinical psychiatrist who saw Larissa on 26 July 2000, 9 August 2000, 8 January 2007 and 3 December 2008. His written reports were put into evidence and he gave oral evidence.
•
Dr Carol Burton, a clinical neuropsychologist who assessed Larissa on 2 December 2000, 24 March 2006, and 3 October 2008. Reports from Dr Burton were put into evidence. She did not give oral evidence.
•
Dr Robert Adler, a consultant psychiatrist who examined Larissa in August 2007. His report was put into evidence and he also gave oral evidence.
•
Nerrida Gillam, a school psychologist and guidance officer who assessed Larissa on five occasions in June and July 2008. Her report was put into evidence. She did not give oral evidence.
•
Michelle French, a highly qualified and experienced occupational therapist who visited Larissa and her mother at their residence on 16 March 2007 for a period of 2 hours 40 minutes. Her extensive report was put into evidence and she gave oral evidence.
•
Rebecca Berryman, an occupational therapist and rehabilitation consultant. She attended on Larissa and her mother at their residence for about two hours, observed Larissa in a school setting, and had a variety of discussions with Leanne as well as Larissa's school teachers, for the purposes of a report that she provided dated 22 July 2008. She also organised and supervised a living skills program for Larissa at Lomandra, where Larissa was given an independent unit in which the environment was set up to support her physical independence. Ms Berryman's reports were put into evidence and she gave oral evidence.
•
Notes of what occurred in the course of the skills program for Larissa at Lomandra, which Larissa attended for 24 hours a day from 2 December 2008 to 13 December 2008, and then from 17 December 2008 to 19 December 2008.
•
Surveillance evidence of Larissa on 23, 24 and 25 October 2008, 16 and 17 November 2008, and 10, 19, 24 and 25 February 2009.
11 Speaking generally I accept the credibility of all of the witnesses, save that I do not accept the reliability of Larissa's evidence when assessing her performances or forcasting her future capacities whenever that evidence is contrary to other evidence. Examples of this are her evidence of what occurred when a child ate playdough at the childcare centre that Larissa attended when a student at Hellyer College and her optimism about her capacity to mother a child. There are a number of inconsistencies in the evidence about what Larissa can and cannot do and her disabilities. For example, Ms French refers to Leanne as having stated on 16 March 2007 that Larissa fell at least twice a day and Ms French reported that Larissa suffered grand mal seizures approximately every 18 months. By 2007 Larissa had not suffered a seizure for about five years. Whilst it is clear that Larissa is unstable and prone to fall, the evidence does not establish that she falls, that is, falls to the ground at least twice a day. Accepting that Ms French has accurately recorded what Leanne said, I am satisfied that this does not reflect adversely on Leanne's credibility. She may well have meant that Larissa stumbled at least twice a day and I would not be surprised if Larissa did so. Leanne was not prone to overstate Larissa's disabilities and, on occasions, resisted leading questions that invited her to do so. There can be any number of reasons for discrepancies in the evidence. The focus of the evidence ranges over a period of several years during which it is likely that Larissa's capacities have changed and it is likely that as to some things her performance has changed day by day. Insofar as Larissa's capacities can be gleaned from the Lomandra trial, and, to a lesser extent, what appears in the surveillance evidence, I am guided by this evidence.
12 The defendant acknowledges that the plaintiff is unlikely to ever gain remunerative employment and I have no hesitation in so finding. It is an agreed fact that the earnings of a person doing the type of work that the plaintiff might have expected to have obtained, had she not been injured, are $574.73 per week net. The plaintiff's claim for damages under this heading is put on the basis that she would have worked until she was 65 years of age and that the discount that should be applied for contingencies or vicissitudes is 6.1%. Hugh Sarjeant, an actuary, gave evidence in which he calculated the discount rate that should be applied to take into account mortality, total and permanent disability, unemployment, industrial disputes and sickness at 6.1%. In this case, the statutory discount rate that applies to the assessment of the present value of a claim for future loss is 7%. The present value of $1 for 47 years is $739. On this basis the calculation put before the Court on behalf of the plaintiff was:
13 On behalf of the defendant it is submitted that it is unlikely that the plaintiff would have worked beyond the age of 60, and that it is appropriate to reduce the plaintiff's estimated working life by ten years because of the likelihood that she would have had children.
14 My view on Larissa's likely working life is influenced by the evidence before me on the employment history of Larissa's relatives, which includes the following. Larissa's mother, Leanne Jackson, is 38 years of age. She left high school in Year 10 and worked for about four months at the Circular Head Council. Thereafter she worked as a casual food process worker for a couple of seasons with two different employers and was in this form of employment until the accident on 22 April 1991. She had been residing with Larissa's father, Paul Fulford, when she fell pregnant and they had separated before Larissa's birth. At that time Paul Fulford was not employed. Leanne has had very little contact with him since they separated and she has no knowledge of him being in employment since their separation. Leanne did not return to the workforce until November 2006, when she commenced work at the North West Regional Hospital as a casual cleaner. She is Larissa's carer and, for pension reasons, she does not work more hours than the pension cut-off point of 25 hours a week. She would like to work more hours. Had it not been for Larissa's injuries, I am satisfied that Leanne would have returned to the workforce at an earlier time and may well have found full-time employment.
15 Larissa's aunt, Tanya Brooks is 41 years of age. She has one child. She is employed at McCain's as a shift supervisor, having started there as a "casual on the floor". She has been employed there for 21 years.
16 Larissa's other aunt, Karen Stokes, is aged 39. She was not employed during the period that she attended to her three children and did not really get into the workforce until she started at a supermarket when she was about 32. Having worked at the supermarket for some years she then worked at Murray Goulburn for about two years until July 2007, took 12 months off and resumed working there as a laboratory technician about nine months prior to the trial. One of her daughters is a shop assistant, the other is a process worker, and her son is not employed.
17 Larissa's grandmother, Jennifer Dobson, is 61 years of age. Her husband died in an accident in 1995. At that time he was employed at the Savage River Mines at Port Latta and she was working as a casual factory worker with McCain's at Smithton. Before she had a family, she worked as a nurse's aide at the Launceston General Hospital. After having three children she moved to Smithton with her husband. In order to have and care for her family she was out of the workforce for about 11 years. After returning to the workforce, she worked as a process worker with McCain's at Smithton for about five years, and then worked doing quality assessment in the laboratories for nearly 15 years. She retired when she was 55 years of age. Her son, Wayne, Larissa's uncle, is not employed. He has had casual work over the years doing farm work or whatever he can find, but has never had permanent employment.
18 I consider that it is likely that Larissa's working life would have been significantly interrupted by the need to care for children and related family reasons, and by reason of the nature of the work that she was likely to obtain, there would have been periods when she was unable to obtain employment, or was unable to obtain full-time work. Solely on the basis of periods out of employment, and ignoring countervailing contingencies, I would have discounted her claim by about 30%.
19 In Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1985) 184 CLR 485 at 497, Dawson, Toohey, Gaudron and Gummow JJ, agreed with by Brennan CJ, said at 497:
"It is to be remembered that a discount for contingencies or 'vicissitudes' is to take account of matters which might otherwise adversely affect earning capacity and as Professor Luntz notes, death apart, 'sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of loss of income.'"
20 In McLennan v Luttrell [2006] TASSC 44, pars36 - 43, I addressed the weight to be given to these major contingencies as canvassed in Luntz_, Assessment of Damages for Personal Injury and Death_, 4th ed, par6.4. Putting unemployment to one side, on the basis of the figures there referred to, the appropriate discount for mortality, sickness and accident and industrial disputes is only 2.42%.
21 In the report of Hugh Sarjeant put into evidence, dated 11 March 2009, he identified the contingencies that might adversely affect earning capacity as mortality, disablement, unemployment, temporary sickness and disability and working days lost as a result of industrial disputes. He calculated the deduction that should be made for these contingencies at 6.06%. Social security recoveries aside, in that calculation he attributed 4.8 % to unemployment and 1.26% to the other items.
22 In my view, it is reasonable to assume that the plaintiff would have worked until she was 65, particularly if, as has been anticipated, she spent a significant period out of the workforce because of the need to care for children. I also consider it reasonable to assume that she would have entered the workforce by the time she was 18 years of age, and accordingly that the full span of the working life she has lost is 47 years.
23 On the basis of these assumptions, and a deduction of 30% for time spent out of the workforce, her award for loss of earnings would be: $574.73 x 739 x 70% = $297,308.
24 A different approach advanced by the defendant was to assess Larissa's loss by deducting ten years from her anticipated working life for the period that she was likely to have been out of the workforce caring for children. If this deduction is made as a block of ten years from the time when Larissa turned 25, its impact on the calculation of her loss would be as follows:
$574.73 x 527 = $302,882.71
Less $574.73 x 291 = 167,246.43
Balance $135,636.28
Loss of earnings for 47 years, $574.73 x 739 = $424,725
Less reduction for ten years out of the workforce: $135,636.28
Balance: $283,088.72
25 A reduction in the plaintiff's claim for time spent out of the workforce caring for children assumes that she would have married or had a partner. In that event it is reasonable to assume that she would have derived some financial benefit from her husband or partner. Quite properly no separate claim for damages has been made for the plaintiff's loss of this benefit. Nevertheless, it should be taken into account when considering what, if any, reduction should be made to the plaintiff's claim for time spent out of the workforce, and for the other vicissitudes of life.
26 Ordinarily, the major adverse contingency that applies to the assessment of a person's claim for lost earning capacity is for time spent out of the workforce. The amount of any deduction that should be made for the other major contingencies is modest. On the basis of the calculations I made in McLennan v Luttrell (supra) it is no more than 2.42%. It is to be remembered that contingencies work both ways. Contingencies favourable to the plaintiff are the possibility that she may have remained in employment throughout the entirety of her working life, and that her remuneration may have been considerably higher than that which has been applied in this case. When considering an estimate of lost earnings, it is to be borne in mind that there is a limit on the extent to which a person's earnings can be reduced, whilst the extent to which the estimate may be exceeded is not similarly constrained. Another matter that I take into account in determining this claim is the fact that the first year of the calculation is for past lost earnings.
27 I will discount the claim by 17.5%, which results in the following calculation, $574.73 x 739 x 82.5% = $350,398.51. I allow the plaintiff $350,000 for her lost earning capacity.
28 The evidence in support of the plaintiff's claim for loss of superannuation was provided by Mr Sarjeant who calculated it on the assumption that the plaintiff would have worked until the age of 65. His calculation of this loss, without any deduction for contingencies, is $72,509. On the basis of the assumptions he made, the plaintiff's total claim for loss of earnings, without any deduction for contingencies, is $424,725. The amount of $72,509 is 17.07% of $424,725. That per cent of the amount that I have allowed the plaintiff for loss of earnings, $350,000, is $59,745.
29 I allow the plaintiff that amount for loss of superannuation.
30 The plaintiff's claim for attendant care is $4,205,300. This is her most substantial head of damage. It is advanced on the basis that she will need care for 24 hours a day, seven days a week for the rest of her life. It is not asserted that she will need the sort of care that one might expect from a nursemaid, but rather that for reasons of vulnerability, safety and initiation, she will require constant supervision and oversight.
31 The defendant does not dispute that the plaintiff will need care for the rest of her life, but disputes that 24/7 care is reasonably required. The defendant contends that a total of 43 hours' care per week, coupled with an allowance for a carer who sleeps over for three weeks a year, is sufficient. The present day capital cost of this level of support, without any deduction for contingencies, is $1,255,171.80. After allowing for contingencies, the defendant submits that the award under this head of damages should be $1,004,140.00.
32 The question for my determination is not what are the ideal requirements for the care of the plaintiff, but what are the reasonable requirements for her care; Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 66, and Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 573. In Arthur Robinson, at 662, Barwick CJ said, with reference to a claimant whose mental capacity had not been damaged, that:
"The jury, in my opinion, should be told to consider what the respondent, on the assumption that he was spending his own money, and assuming that he had sufficient to do as he would and was well advised and reasonably careful for his own welfare, would be likely to expend in protection of himself and his condition."
33 The dominant force in Larissa's life and well being has been, and will continue to be, Leanne, her mother. Leanne's intention and hope is to continue to be involved in looking after Larissa, but she needs and would welcome help. My expectation is that for as long as she is able Leanne will bear the burden of the ultimate responsibility for Larissa's care and that she will strongly resist any effort to intrude on Larissa's care that is not, in Leanne's view, in Larissa's interests. Leanne will not have Larissa locked away or confined. Even when Larissa is older, Leanne does not want her put in an "old people's home or anything like that". Her expectation is that Larissa will remain at Leanne's home or very close by so that she may see Larissa every day and be available if Larissa needs her. She wants an immediate means of communication available between her and Larissa at all times. If she had an unrestricted choice, it would be for Larissa to have "a little granny flat with us", if not within the same structure, at least very close by. The age difference between Leanne and Larissa is 19 years, so it is likely that Leanne will supervise Larissa for the bulk of her life.
34 As to Leanne continuing to bear the bulk of the hands-on responsibility for caring for Larissa and providing that care, I have no doubt that Leanne needs considerable support. Again, whilst I have no doubt that if a means of providing help was not available Leanne would continue to bear this burden, I am equally in no doubt that commercially provided care is reasonably required for Larissa, and it is appropriate to make an award for its provision.
35 Ms French is of the view that due to the nature and extent of Larissa's impairment, she requires the support and supervision of an attendant carer at all times. In so concluding, Ms French relied partly on the medical evidence, the psychological and clinical evidence of Larissa's cognitive impairment, partly on a two hour and forty minute interview with Larissa and Leanne, and significantly on her clinical experience with other patients with acquired brain injuries. Ms French agreed that in her experience people with acquired brain injuries had a vast array of different care needs which do not necessarily require 24 hour care, and said that her assessment that Larissa needed 24 hour care, depended significantly on her understanding of the nature and severity of Larissa's cognitive disability. As to whether there was any standard assessment procedure for determining the care needs of a person suffering from acquired brain injury, she said there was no over-arching assessment protocol and although there were a number of care assessments available, none have proven to be valid or reliable because you cannot standardise the individuals involved. As a clinician she would recommend further trials at Lomandra or the like to assess Larissa's needs.
36 Dr Adler reported, following an examination of Larissa in August 2007, that Larissa did not have the capacity to manage her own affairs independently in the future without the active support of her family or professionals to assist her with many of the tasks of daily living and planning, as well as to protect her from exploitation. In the course of his oral evidence, he said that he would not expect Larissa to live independently without the assistance of another normal functioning adult. As to how many hours care Larissa would require, he accepted that the most reasonable way of assessing that would be the use of a team, including occupational therapists, psychologists, a speech pathologist and a physiotherapist. He said he was not suggesting that Larissa needed 24 hour a day care in the sense of someone being constantly present at all times.
37 Mr Marriott explainied how the damage to Larissa's parietal lobes and frontal lobes caused her incapacities. Following an examination of Larissa on 8 January 2007, he reported, on 28 February 2007, that Larissa was not safe or competent to live by herself and she was unlikely to achieve full independence, even though she may get to a stage where she could live in her own home with daily support. The effect of his oral evidence was that she will need 24/7 support. For example, he doubted whether Larissa could use an electronic device if confronted with an emergency should she be left without supervision in a granny flat. He said that Ms Burton's reports were excellent, but thought that there was perhaps inadequate emphasis in them on Larissa's dependency on others, and on her need for someone to depend on. In the context of Larissa's physical therapy program and the supervision of other aspects of her life, he said: "the carer is acting as Larissa's frontal lobes." Whilst the thrust of his evidence was that Larissa needed 24/7 care, he agreed it was not a case of either no care or full care, and that the level of care she needed would depend on a careful assessment of what she could and could not do. He would expect that assessment to be made by a multi disciplinary team of occupational therapists and the like.
38 Dr Burton's report of 31 March 2006 included the following. Larissa was likely to need some form of supervision in relation to daily care due to her cognitive limitations, particularly poor planning and organisation, and poor abstract thinking. There was unlikely to be any deterioration in Larissa's intellectual function. If Leanne was not available, a carer might need to be appointed to supervise Larissa, and difficulties would arise should Leanne cease to be available. Larissa could not be considered able to handle her own financial affairs, but might manage the small amounts of money necessary for daily expenses. In her report of 20 October 2008, Dr Burton confirmed her view about Leanne's role and said it would be preferable in the longer term for attendant carers to be employed to supervise Larissa's activities and assist with transportation to appointments and activities so as to give Larissa a degree of independence and increased self-confidence. She was uncertain about whether Larissa would require 24 hour a day care, in the absence of some means of establishing what Larissa's needs were away from the nurture and support she had at home. She suggested a trial period of living away from home to establish what Larissa could manage, what she needed support for, and how much care she would need at home and in the community. Noting that Larissa had learned to take a bus to school on her own, Dr Burton said that it may be that with appropriate input, much practice and support, Larissa could learn some simple, practical every day tasks that would enable her to be functionally more independent. Recognising that Larissa had been left for up to four hours unsupervised during the day, without untoward effects, Dr Burton said that this suggested Larissa may not require one-to-one 24 hour a day supervision, but would need an attendant carer present for a number of hours daily, and may need access to support as needed over a 24 hour period. She said that no information had been provided that suggested that Larissa needed someone to be with her overnight, but noted that Larissa had never spent a night alone, and said that if she was living away from home on her own she would probably need to have someone living with her in case of an emergency. She said that Larissa's capacity to live independently would depend upon the degree to which she was able to manage her personal, domestic and community activities. Dr Burton suspected that Larissa would require attendant care in the form of supervision and monitoring, initially on a daily basis, with access to additional care as needed.
39 In her report of 5 August 2008 Ms Gillam referred to Larissa's difficulty in grasping the complexities of social interactions with her peers at school and said she is likely to face new challenges learning the complexities of relationships with people of different ages without supervision or mentoring. She referred to Larissa's failure to fully comprehend the impact of her own reactions on others, discern the motives of others, or read the subtleties in verbal expressions because of her language delays and because humour is obscure to her at times. This is because of her concrete thinking patterns and tendency to interpret speech very literally. Ms Gillam concluded that Larissa is very vulnerable to emotional manipulation by others more streetwise than she.
40 For the purposes of her report of 22 July 2008, Ms Berryman attended Larissa and her mother at their residence for about two hours, observed Larissa in her school setting, and had a variety of discussions with Leanne, as well as Larissa's school teachers. As explained in her oral evidence, Ms Berryman is of the view that 24/7 care for Larissa would be a backward step as she currently operates without that level of care and it would be detrimental to her self-confidence. In her report of 22 July 2008, Ms Berryman set out the details of her assessment of Larissa's future care needs for the next ten years, the following 20 years, and the balance of her life. She said that Larissa would need back-up respite care overnight should the family be away or Larissa be sick. She assessed this need at three weeks a year for the next ten years, and four weeks a year thereafter. She postulated that for the next 30 years Larissa would obtain a part-time supported work placement or meaningful activities for up to four hours a day, five days a week. She recommended an initial block of 80 hours care spread over two months to put in place bus routes and other routines. That block of care apart, she recommended that the hours of weekly care provided during the three periods referred to be 27 hours, 28 hours and 27.5 hours respectively. Following the Lomandra trial that she put in place and supervised, Ms Berryman increased her estimate of Larissa's weekly care needs to between 45 and 50 hours.
41 On a number of occasions in the course of the trial comments were made to the effect that to date Larissa has had 24/7 care. That comment is misleading if taken to mean that Larissa has, at all times, been under the observation of a carer. What the evidence establishes is that at all times Leanne has been concerned about Larrisa's welfare and she has overseen Larrisa's welfare on a daily basis. This is a long way from the sort of 24/7 care that underpins the plaintiff's case at its highest.
42 To Leanne's great credit, she has not adopted an overly protective approach to Larissa's welfare, by confining her in a way that eschews all risks and thereby relieves Leanne from the maternal fears and concerns that she undoubtedly has for her daughter when they are apart. Leanne has resisted the option of putting her own fears and concerns for Larissa's welfare ahead of the need to allow Larissa to live as full and enjoyable a life as her capacities allow. In saying this, I am in no sense suggesting that Leanne has been imprudent about Larissa's welfare. She has undertaken the extraordinarily difficult task of catering for Larissa's competing needs without succumbing to the selfish temptation to unnecessarily confine Larissa so as to reduce her own apprehensions. No one has been in a better position than Leanne to assess the extent to which Larissa requires care. To date her supervision and monitoring of Larissa has been sufficient to protect Larissa from, or at least extricate her from, situations that might have resulted in harm or abuse. What Leanne has done with success in this regard is, to my mind, a most useful guide to what is required in the future.
43 The most significant and consistent instances of Larissa being beyond Leanne's direct supervision and control are her attendances at school. A far less significant example is when she was at Scouts. When aged 8 or 9, Larissa began attending the Somerset Scout Group and this continued until she was 14 or 15. From time to time Leanne attended the group or camps as a parent helper. In her evidence Leanne resisted the invitation to exaggerate the extent to which she monitored Larissa by accompanying her when she attended the group or went on camps.
44 As to Larissa's attendance at school, the school reports and related documents put into evidence show that she attended the Somerset Primary School from at least 1996 (Prep/Grade 1) to 2002 (Grade 5/6), Burnie High School from 2003 to 2006 and Hellyer College in 2007 and 2008. She is currently attending the Tasmanian Polytechnic, Hellyer Campus, Burnie. Leanne told Dr Adler that Larissa attended an early special education program at the age of 3, as well as kindergarten.
45 Leanne said that during Larissa's first year at primary school she, Leanne, attended the school quite often. I infer that this did not continue. In response to a question as to whether she went to Burnie High from time to time to discuss and observe Larissa's progress, Leanne said, "I had a lot of phone calls." I infer from this that she did not attend the school in person with any frequency in order to monitor Larissa.
46 Larissa is currently undertaking what Leanne describes as a lifestyle course for disabled people at the Polytechnic. The course is specifically designed to teach disabled people life skills. Leanne accompanied Larissa for about two and a half hours on the first day of the course. Larissa's fellow students are disabled and some are also intellectually impaired. Larissa attends the course three days a week, on Monday, Tuesday and Wednesday from 9am to 3pm. The course will run for the full education year. Leanne's understanding is that Larissa is not expected to go to the Polytechnic next year.
47 Larissa resides at Camdale, Burnie with her mother. She has caught a bus to school since her first year at Burnie High. That school is to the east of Camdale and fronts on the southern side of the Bass Highway. To an extent that is unclear, initially Larissa was accompanied on the bus to Burnie High by her cousin Tays Jackson who is about three years older than her. In her latter years at Burnie High, Larissa may have been accompanied by her brother, Cameron, however, he rarely travelled to school from Camdale as he normally resided with his father in Stowport. Larissa caught the bus to Burnie High from a sheltered bus-stop on the nearside of the Bass Highway at Camdale. The stop is a short walk from her home. From that stop the bus travelled west along the Bass Highway to Somerset and then returned east along the highway to Burnie High where it stopped in the grounds of the school. I infer that for the return journey the bus was boarded in the school grounds. Larissa left the returning bus at the sheltered stop on the near side of the highway where she caught the morning bus.
48 In order to get to Hellyer College in 2007 and 2008 and now the Polytechnic, Larissa has boarded her first bus on the far side of the Bass Highway. She uses pedestrian traffic lights to cross the highway. Her first bus takes her to Cattley Street in the centre of Burnie where she leaves it, crosses to the other side of Cattley Street and catches a second bus to Moreville Road, Hillcrest where Hellyer College, and the Polytechnic are. There are traffic lights in Cattley Street, Burnie. When returning home Larissa must do the reverse, although it is not necessary for her to cross the Bass Highway when she gets off the bus near her home.
49 Leanne gave instructions to Larissa about catching the bus to Hellyer College and said it had taken quite a few weeks to establish with Larissa what she had to do. It was said that a student Larissa had known since kindergarten, travelled on the same bus as her to and from Hellyer College. It was not asserted that he in any way supervised Larissa or was always on the same bus. It is clear that he was not. Larissa was alone in October 2008 on the occasion when she was filmed catching the bus to Hellyer College. That DVD shows Larissa arriving on foot at the sheltered bus-stop on the near side of the highway and stopping to converse with a male and two females of about her age. She then moved off and crossed a street which intersects with the highway to the east of that bus shelter. On the eastern side of that street there are pedestrian traffic lights for crossing the highway. She crossed the intersecting street after pausing to allow vehicles to pass. At the lights she pressed the pedestrian light activation button, waited for the light to change and then crossed the highway and walked to the stop where she was to catch the bus. At least from the point that she left the sheltered bus-stop on the near side of the highway she was alone.
50 On the first occasion when Larissa went to catch the bus to Hellyer College, she went to the bus shelter on the near side of the highway, but the bus went by without stopping. (It was subsequently established that the bus only stopped for students in Burnie High uniforms.) Larissa phoned Leanne and told her what had occurred. Leanne collected Larissa from the bus-stop and drove her to College. Leanne established that the bus Larissa should catch stopped on the far side of the highway. Leanne explained this to Larissa and "the first few times" that Larissa caught that bus, Leanne accompanied her as far as a vantage point, a bank, from which Leanne could see the traffic lights and the bus-stop and could watch to see that Larissa had crossed the highway and caught the bus. I infer from this that the friend who was said to travel on the same bus as Larissa to and from Hellyer College did not accompany her on these first few trips. The wrong bus-stop problem that occurred on the first day suggests that the instructions Leanne had given to Larissa about catching the bus to College were, at least in part, directory, and had not involved walking her through the process. The manner in which Leanne dealt with that problem indicates that Leanne has considerable confidence in Larissa's capacity to heed and comply with directions.
51 The extent of Larissa's comprehension of what her travel to and from the Polytechnic involves can be gleaned from the following evidence. She said that on a day when she goes to the Polytechnic she gets up at between 6 and 6.30am in order get to the bus-stop by 7.45am. She showers straight away, has her breakfast and tablets, does her lunch, packs her bag, dresses, puts on her shoes and walks out the door. She walks out the gate, closes it, walks around the corner, crosses the road when there are no cars coming, and then goes across the crossing at the traffic lights on the Bass Highway, waits for the bus and gets on the bus. The bus takes about 20 minutes to get to Burnie where she gets off outside Harris Scarfe. It takes about five minutes to get on the next bus which is at 8.30 and she gets to school at about 8.40. This gives her time to go to her classroom and be ready for the class to start. Her school day at the Polytechnic finishes at about 3pm. She catches the bus at 3.16pm across the road from Hellyer. That bus takes her to town. She gets on the next bus at 3.30pm and it takes her straight past her home, where she gets off and is at home by 3.50pm. She explained that she left home in the morning at about 7.25am, even though her bus came at 8.12am, because she had cousins and family members who waited at the bus-stop for Burnie High, so she normally went early in order to talk to them until their bus came, and then she went to her own bus-stop.
52 Further evidence that bears on Larissa's needs is evidence of her being left alone for periods of up to four hours. This period roughly equates to the usual duration of Leanne's shifts at work. She has worked at the North West Regional Hospital since November 2006. Most of the time her shifts are four hours. She is Larissa's carer and, for pension reasons, she does not work more hours than the pension cut-off point of 20 or 25 hours per week. She was unsure about the cut-off point but thought it was the latter and, in that, she is correct. When she works in the morning she leaves home at about 7.45am and returns at about 12.30pm. Larissa said that when Leanne worked in the evening, Leanne telephoned at 2pm to check when she was required, went at about 4pm and returned at about 8.30pm to 9pm. Leanne sometimes works weekends.
53 Accordingly, on those few occasions prior to the trial this year when Leanne worked on the morning shift on a Thursday or a Friday, Larissa would have been left at home alone for about four and three-quarter hours unless an arrangement had been made for her to be accompanied. Since November 2006 when Leanne has worked at night or during school holidays, Larissa will have been at home alone or with a member of the family or the like.
54 Larissa says that for those occasions when she is home alone she has a list of all the phone numbers she may need to contact in her mobile phone. There is a home phone as well. She has an aunty around the corner she can call if she needs help. There is a next door neighbour who is there pretty much all the time, and a cousin who lives in Somerset who would come over if she needed help.
55 Kristy Lesley, a friend of Leanne's, sometimes leaves her daughter Piper with Leanne whilst Kristy is at work. Piper turned three in May this year. On occasions when this has occurred whilst Larissa was at home, Piper has been left with Larissa whilst Leanne drove Kristy to her place of work in Wynyard. That this occurs is indicative of the confidence that Leanne and Kristy have in Larissa when left with Piper. Whilst Larissa's Nan says that she does not approve of Piper being left with Larissa, surveillance film of this trio on 10 February 2009 shows that Nan was content to leave Larissa and Piper outside a shop in Somerset for about five minutes.
56 Larissa occasionally walks to the "Vegie Shed" which is about 1km from her residence, and to the newsagency and supermarket in Somerset. The Cam River is to the west of Camdale prior to Somerset. There is a boat park on the far side of the Cam River and Larissa walks there "every now and then". Leanne says that Larissa normally goes with someone and that she, Leanne, basically requires that when Larissa is outside the front gate, except when going to school, she has someone with her. The evidence of Larissa's Nan was not so emphatic. She said that sometimes when Larissa goes to meet friends down at the Cam River she wonders whether Larissa is just roaming about. To the best of Leanne's knowledge, Larissa has not gone off alone. Larissa went to the Burnie Swimming Pool a couple of times with friends during the last summer and also went with her family. Leanne said she allows Larissa to go to the pool without other members of the family, because there are lifeguards at the pool. As to Larissa being at the pool with her friends, Leanne in effect said she was content because they know about Larissa. As to Larissa going to the beach, she agreed that there would not be a lifeguard there but said that Larissa would be with Danyelle and Cameron and Leanne's niece and nephew would be around the corner, as well as a friend of Cameron's. She also said that there are normally a lot of people at the beach. I conclude that Leanne's strong preference is for Larissa to always be in the company of someone Leanne knows when Larissa is away from home. However, this does not involve tight surveillance or control. On the way to and from school, and during school breaks, Larissa is not closely supervised. The school records show that there have been times when her attendance at classes has been very poor. Larissa does not acknowledge that she has missed classes as regularly as the records suggest. It is clear, however, that she skipped class on a number of occasions when she was being bullied. Larissa says that when she skipped class she went to TAFE to see friends.
57 For at least six years there have been times when Larissa has not been supervised These times include periods of bus travel, school breaks and occasions when she has skipped classes. Although she has had the opportunity to get into trouble by going off on her own she has not done so. In response to a question as to whether she had a plan to ensure Larissa's safety when Larissa was alone, Leanne said: "I always contact her by phone or we send her a text to make sure she is ok, and sometimes I ring her, but if I don't hear - or don't get any response I know she is in class, and then she normally texts me back." It is not easy for Leanne to contact Larissa when Leanne is at work. Leanne's employer requires that employees not have a telephone on them, so she must keep her mobile phone in her locker when at work. She gets a 15 minute break during the morning, and if she gets a chance, she sends Larissa a text and checks for a reply during that break.
58 Vulnerability is central to the contention that Larissa requires 24/7 care. There is no question that Larissa is and has been vulnerable and will continue to be so. Sexually she is vulnerable in a variety of ways that included violent abuse and predatory seduction, and all that might flow from this sort of eventuality. The risk of her attracting the attention of a sexual predator will be increased by her damages award. So far as Leanne knows, to date, Larissa has not been the subject of a successful effort to take advantage of her sexually. It is pertinent that for the past six years or so, Larissa has been at risk of sexual abuse when away from home. Obviously enough, during most of the time that Larissa has been at school, a teacher or school official would have been keeping an eye out for her, and when travelling to and from school she would have been in the company of fellow students. Nevertheless, there will have been many occasions when she could have come to harm. It is quite clear that she is capable of saying no when she wants to and she is not absurdly naive. She is obviously well aware of questions of personal privacy. When at Lomandra, a carer tried to stay in the bathroom as Larissa showered. Leanne said that Larissa was very, very uncomfortable with that and made it known that she did not like it at all.
59 My impression from all of the evidence, including Larissa's behaviour in the witness box and the surveillance evidence, is that she has a reasonable amount of basic common sense. I accept Ms Berryman's rejection of the proposition that it is unrealistic to trust that Larissa would not respond to a text message from someone who is undesirable. She said: "I think Larissa demonstrated some very good common sense when things were discussed with her."
60 Consistent with virtually all of the expert evidence, I conclude that Larissa has a real but limited and slow capacity to learn. The Lomandra trial demonstrated Larissa's capacity and willingness to perform basic day-to-day household activities. Leanne described Larissa at Lomandra as a totally different person. Ms Berryman reported that following the trial both Leanne and Larissa felt that in an appropriate environment and with an appropriate level of support and familiarisation and training, Larissa would learn to manage living in an independent situation. Larissa's capacity to learn, albeit limited and slow, is relevant to her vulnerability. Also relevant to her vulnerability is her openness and willingness to talk to carers about personal matters. Ms Berryman said that Larissa's openness about what she was thinking gave a daily carer the opportunity to talk to Larissa about socially appropriate behaviour and orientate her to situations. She said a carer would be a really good sounding board for Larissa and would have the opportunity to discuss with her what she was up to and what she was interested in. Ms Berryman said that for this reason it was important that the carer did not only visit once a day, and that the carer's time was spread over the day so as to keep tabs on what Larissa was doing, where she was going and who she was seeing. As to Larissa's vulnerability in financial areas, I am satisfied that controls can be put in place that will limit, if not entirely remove, her exposure in this regard.
61 For as long as Larissa resides in her mother's home she will have no need for an overnight carer. However, my expectation is that Larissa will move to accommodation that is separate from her mother's, probably a separate unit or the like, at the rear of the residence where Leanne is residing. Ms Berryman said that based on the Lomandra trial, Larissa could learn to put herself to bed and become comfortable with sleeping independently overnight. She said there was no reason why a block of a carer's time could not be put aside to monitor the situation. Half an hour could be put aside for someone to give Larissa a call at 8pm to check on her and remind her of the need to lock the doors and the like. This system can work quite effectively. Ms Berryman said that she and Larissa had talked about the ways in which Larissa could get help if she felt at risk, or something happened out of the ordinary and she needed to talk to someone. They talked about texting, a media-alert system, a panic button, or the use of the telephone. She said that Larissa seemed to grasp the concept of these means of gaining help if she felt that she was not coping. I accept this evidence and note that as to Larissa's capacity to use a phone when something out of the ordinary occurs, she successfully did so when she phoned Leanne after the bus failed to stop for her on the first day that she attended Hellyer College. Ms Berryman said that if Larissa was sick she would need somebody with her as she would not be in an ordinary situation. Although Larissa's sleep is sometimes unsettled, nothing on the evidence satisfies me that a regular overnight carer for Larissa is reasonably necessary. She would be quite capable of walking the short distance from a unit at the rear of her mother's residence to that residence. The complications associated with her doing so, even at night, pale into insignificance when compared with the difficulties of getting herself to and from school. If for any reason walking was not an option, she could use a phone or a dedicated means of communication installed for that purpose. I accept that if Larissa is sick or there is no family member available, it is reasonable that a carer should sleep at the residence. A reasonable allowance for this is four weeks per year.
62 It is accepted that Larissa is unlikely to obtain remunerative employment because of her cognitive disabilities and the reduced fine motor skills she has with her left hand. The same factors bear on her ability to obtain and persist with supported work or work in a sheltered workshop. St Vincent de Paul run three establishments that are of the nature of sheltered workshops on the north west coast, one of which is at Somerset. The focus of these establishments is recycling. Disability Employment and Tasmanian Redeployment Services specialise in placing disabled people in employment on the north west coast. Ms Berryman, in her reports assessing Larissa's needs for a dedicated carer, addressed the possibility that Larissa might obtain supported employment and in that event, she reduced her assessment of Larissa's need for a daily carer during the week from six hours to five hours. In her evidence she said she could see Larissa coping in a volunteer supported employment position. Mr Marriott has had 25 years' experience with the involvement of people with acquired brain injury in sheltered workshops. He said that at least half, if not more, do not last in a sheltered workshop for reasons that include: getting sick of the work and refusing to go; interpersonal conflicts; anger problems; failing to do anything and disrupting others. He said that sheltered workshop employment tends to be phasic and it is rare that somebody goes to a sheltered workshop, settles in and perseveres for the longer term. He said that the chance of Larissa obtaining supported employment was a possibility that he would not dismiss out of hand. Ms French said that she would not say that supported employment was not possible for Larissa, but she had experience with people similar to Larissa who had been trialled for supported employment and all of the trials had been unsuccessful because of impulsivity, lack of initiation and challenging behaviours. She said that fatigue was another major player with acquired brain injury and impacted on the sufferer's capacity to attend work regularly. Nevertheless, she would certainly encourage supported employment for Larissa.
63 I conclude that although there is a possibility that Larissa may obtain work in a sheltered workshop, or may find supported employment, this is only a possibility, and if she does so it is likely that her involvement will be phasic. In the circumstances, I will not reduce the hours allowed for an attendant carer on the basis that Larissa will find such a position, although I will pay regard to this possibility as a contingency.
64 The problem remains that Larissa is vulnerable to being beguiled and abused by predators. However, real as that danger is, I am not satisfied that it warrants the provision of 24/7 care. To date, Leanne, without the support of any dedicated carers, has been able to protect Larissa from abuse. Whilst those involved in Larissa's education will have looked out for her welfare, I doubt that their interest and concern will have provided Larissa with more protection than she will receive from regular periodic daily care. I am satisfied that it is appropriate to provide Larissa with this level of care, and consider that it, coupled with her mother's interest and concern will go as far as is reasonably required towards protecting Larissa from her vulnerability and catering for her needs. The sort of 24/7 care that might ensure that Larissa did not suffer as a consequence of her vulnerability would involve close one-on-one care. No one has suggested that such an intrusion in Larissa's life is desirable, or would be accepted by her. Whilst it is in a sense offensive to suggest that any level of risk arising from Larissa's vulnerability is reasonable, the reality of life involves an acceptance of some risk. The level of risk that Larissa is exposed to by reason of her vulnerability will be reduced to a reasonable level if she is provided with periodic daily care to the extent that I will address, coupled with her mother's overview.
65 My views on Larissa's attendant care needs are influenced more by the evidence of what Larissa has done with success in the past than by professional forecasts based on tests of her cognitive disability, and experience of the limitations of people who suffer from acquired brain injury. As to this I am mindful of evidence, such as that of Ms French, to the effect that there is no one valid reliable means of assessing the care needs of a person suffering from acquired brain injury, as you cannot standardise individual needs. To varying degrees the expert witnesses have acknowledged that extensive further trials and assessments need to be undertaken in order to determine what Larissa's capacities and needs are. This acknowledgement recognises the logical importance of looking to what Larissa has actually done in order to determine what she can do and what her needs are. In the absence of the comprehensive trials and assessments that have been canvassed, the best evidence available of Larissa's needs is the evidence of what she has done, and this includes the Lomandra trial.
66 Ms French, and to a lesser degree Mr Marriott, in effect said that due to Larissa's cognitive disability, she requires 24/7 care. In rejecting that premise and evidence to the effect of it, I am also influenced by what I discern to be a tendency in the evidence of each of them to discount evidence that ran counter to that premise. For example, Ms French was, to my mind, unduly sceptical about and dismissive of the positive aspects of evidence that Larissa had been left alone at home for short periods and ducked classes at school, without getting herself into harm, evidence that Larissa had successfully used a Webster pack, evidence that she had done the household laundry, and evidence that she had never snuck out at night. Mr Marriott was, to my mind, unduly pessimistic about evidence as to Larissa using her mobile phone to send text messages, her capacity to handle money, her capacity to use the phone in an emergency, and her reaction to being involved in an activity for disabled people.
67 In her report of 12 February 2009, Ms Berryman significantly revised and increased her estimate of Larissa's need for carers in the light of the outcome of the Lomandra trial and Ms Berryman's discussions with Larissa's carers and with Larissa. In that report Ms Berryman estimated Larissa's needs for a carer in a variety of situations. In the event that Larissa lived in a separate unit and was unable to find a work placement or activity which took her out of the home, Ms Berryman estimated Larissa's need for a carer and home help as follows:
•
Six hours a day (two hours am, one hour lunch and three hours pm) for a combined carer/household help role.
•
Six hours a week carer support to assist with community based activities/shopping/assistance to any medical or other appointments.
•
Three weeks a year overnight sleep care for respite or when Larissa became unwell.
•
House Maintenance Assistance, 2 hrs a month @ $45/hr.
•
Gardening, lawn-mowing assistance, 3 hrs a month @ $45/hr.
68 Subject to the following, I broadly accept this assessment by Ms Berryman and adopt it as the best guide I have to Larissa's care needs. I do not consider it useful to endeavour to distinguish between Larissa's potential need for care during particular periods of her life. The task is speculative enough without adding a further level of speculation. Ms Berryman also referred to financial management assistance, as outlined by Ms French. Insofar as that assistance involves small day-to-day transactions, it is covered by the carer support that I will make provision for. Insofar as it relates to professional advice, that is a separate and distinct matter and is covered by the allowance to be made in relation to the administration of the plaintiff's damages.
69 In putting a capital value on Ms Berryman's assessment, I proceed on the basis that an appropriate allowance for sleepovers and respite is four weeks. Four weeks per year was the allowance that Ms Berryman made in her report of 22 July 2008 in respect of the period of Larissa's life from the age of 27 onwards. I can see no reason for reducing that allowance to three weeks per year. My calculation of this claim is:
Weekdays - six hours per day - 30 hours at $33.50 per hour:
Weekends - six hours per day - 12 hours at $50.25 per hour:
Community-based activities - 6 hours at $33.50 per hour:
Four weeks of sleepovers at $199.80 per shift: $5,594 per year:
70 Larissa has just turned 19. The future life expectancy of a 19 year old female is 63.43 years. The present value of $1 per week for 63.5 years at the 7% discount rate is $760.50. On this basis, Larissa's claim for carers capitalises at $1,497,044.20.
71 I turn to contingencies. My firm view is that Larissa does not need 24/7 care, and that the provision made for her care is all that is reasonable and is sufficient. I am accordingly of the view that the above calculation is towards the upper end of her entitlement. The calculation is based on a cautious approach to Larissa's prospects of finding sheltered or supported work and finding a suitable partner. There may be delay in Larissa taking on carers as postulated and, as she becomes familiar with the environment put in place for her and slowly acquires some skills within that environment, her need for care may diminish. Regard also needs to be paid to the possibility of Larissa's early death, as well as the possibility of Leanne's early death and the failure of Larissa's remaining family to provide her with the sort of assistance that Leanne provides. I allow this head of damage at $1,350,000.
72 In order for Larissa to maximise her capacity to care for herself in the future and to facilitate the provision of the care that she reasonably needs, she should be provided with a suitable independent living area. The means by which this may be provided are many and varied. It may involve Larissa's mother selling her existing residence and purchasing an alternative residence that is more suited to the ultimate purpose. At her present residence it would involve either extending and renovating the existing home, or a separate unit. The same could be the case at a substitute residence purchased by Leanne, or it could be that she purchases a substitute residence in which there is an independent living area or unit that could be converted for Larissa's needs. The outcome favoured by Leanne is a "granny flat" and I share her view insofar as I consider that the most desirable outcome would be a unit.
73 A report dated 29 February 2009, from Debbie Thomson, an architect, was put into evidence. She estimates the cost of extending and renovating the existing home, as detailed in her report, at $144,900. She estimates the cost of providing an independent living unit as detailed in her report, at $153,000.
74 Ms Berryman, at pages 9, 10 and 13 of her report dated 22 July 2008, estimates the cost of a re-locatable unit and related items. In her report of 12 February 2009, she added $2,900 for the cost a heat pump, and in her oral evidence, she added $4,000 for the cost of an induction cook-top and induction pots and pans. Adopting the higher estimates that she gave, they total $113,580. To this estimate, the plaintiff submits GST should be added. I am dubious about this as I assume that the estimates obtained by Ms Berryman included GST.
75 On the evidence before me, I consider that the cost of a unit is the best starting point in endeavouring to assess the plaintiff's entitlement under this head of damages. As the evidence in relation to the calculation of the likely cost of a unit has not been tested before me, I will adopt the estimate of the most qualified witness in this regard, Ms Thomson, that is, $153,000. The plaintiff submits that to this amount should be added an amount to reflect the need to move in, say, 30 years, that is: $153,000 x .1314 = $20,104.
76 I accept that there is likely to be a need for Larissa to change her accommodation at some time in the future, but, save in my consideration of contingencies, I will not make a specific additional allowance for such a change as it should in part be covered by the capital benefit that Larissa derives from her award of damages under this head. It is to be remembered that the defendant is only obliged to compensate the plaintiff for additional housing expenses arising from her disabilities. It is for the plaintiff to meet the ordinary expenditure on housing that she would have incurred in the ordinary course of her life. She has been separately compensated for the loss of income that in part would, in the ordinary course, have gone towards her housing. Moreover, whatever means are adopted in order to provide Larissa with an independent living area, they should result in an increase in the value of the property concerned, and it should be easy for Leanne and Larissa to work out a means by which Larissa retains the estimated benefit of that increase.
77 In gauging the plaintiff's entitlement, I start with Ms Thomson's estimate of the cost of constructing a unit at $153,000. Other matters I pay regard to include the following. There will be some delay in providing Larissa with suitable independent accommodation, in which case she will have had the benefit of the early receipt of the award. A portion of the anticipated award will go towards accommodation that Larissa would have paid for in the ordinary course of her life. It may be necessary for Larissa to re-incur the expenditure of that portion of the award that relates to her disabilities, if, for example, Leanne changes her residence.
78 I will allow $100,000 under this head of damages.
79 This claim is detailed in par14 of the amended particulars of claim and is supported by Ms French's report of September 2007, pars2.12 - 2.16, and par25.1. Insofar as the items that are the subject of the claim have been challenged, I am satisfied that they are reasonably necessary. For example, I am satisfied that the handwriting improvements that Ms French anticipates would result from the provision of a slanted height adjustable desk and a slanted board, warrant the provision of these items. It is an agreed fact that the costs that Ms French has attributed to the products and services as detailed in her report are reasonable and that the replacement period that she has provided for in relation to products are reasonable.
80 The annual cost of the items that are the subject of this claim is $1,549.60, that is, $29.80 per week.
81 The plaintiff's future life expectancy is 63.43 years. It is an agreed fact that there is no significant risk of a reduction to her life expectancy arising from the injuries and disabilities she suffers as a consequence of the accident.
82 Applying the statutory discount rate of 7%, the present value of $1 per week for 63.5 years is $760.50. Accordingly, this claim is capitalised at $29.80 x $760.50 = $22,662.90.
83 This claim reflects Ms French's report, par9.11, and is detailed as follows in par17 of the amended particulars of claim:
84 I accept that by reason of Larissa's disabilities she has a higher need for a laptop computer than she would otherwise have had, and that it will need to be sturdier, and she may need to replace it more regularly than normal. I am, however, satisfied that in the ordinary course she would have required a laptop computer. I put her entitlement arising from her increased needs in this regard at $500 per annum.
85 In her oral evidence Ms French said that the Zire Organiser, a palm top organiser, which she had recommended is no longer available.
86 I do not accept that by reason of her disability Larissa has an increased need for stationery of the nature of exercise books.
87 It is reasonable to provide Larissa with a white board and a laminator, so as to facilitate the provision of visual prompts for her.
88 The annual cost of the items I have allowed is $536.50, that is, $10.32 per week. Accordingly, this claim is capitalised at $10.32 x $760.50 = $7,848.36.
Aids to activities of daily living. Eating and drinking. Cooking and meal preparation
89 The claims made under these heads of damage are detailed in pars18, 18 (a repeated number) and 19 of the amended particulars of claim. The claims reflect Ms French's report pars10.10, 12.5, 14.7 and 25.1. Ms French and Ms Berryman are in agreement about eight of the items covered by these claims but differ as to other items for which they have made an allowance under what I consider, in broad terms, to be these heads of damage. For example, Ms Berryman has made an allowance for a shower chair and a laundry trolley, whilst Ms French has not. On the other hand, Ms French has included a number of items that Ms Berryman has made no allowance for. The weekly cost of the items claimed by the plaintiff is $14.47 which capitalises at $11,004.44. The capitalised value of the items Ms Berryman has provided for, excluding easy grip scissors and finger splints which are provided for elsewhere, is $10,298.48. I will award the plaintiff $10,650 in respect of these claims.
90 This claim is detailed in par20 of the amended particulars of claim. It is based on Ms French's report, par17.10, in which she says that Larissa should be provided with the following aids to assist her in the management of a small household budget: a community wallet - reviewed annually; a small petty cash safe - replaced at seven year intervals; a calculator - replaced at four year intervals; and pens and exercise books - replaced annually.
91 As to a petty cash safe, this was covered by the above award, it being one of the items Ms Berryman made an allowance for. I will not make an award in respect of wallets, calculators, pens and exercise books as I am not satisfied that Larissa has a need for these items over and above what her need for them would have been in the ordinary course of life.
92 This claim is detailed in par21 of the amended particulars of claim and is based on Ms French's report, par19. She, in substance, says that in order to maximise Larissa's ability to participate in identified recreational and leisure interests and activities, her attendant carers will need to accompany her to a variety of events. Ms French recommends that an annual allowance of $650 be made for admission costs to events, that is, $12.50 per week. In her report of 22 July 2008, Ms Berryman adopted this allowance in the three care packages that she postulated. The allowance was not the subject of oral evidence or submissions. I consider it to be reasonable, and in making an award for it, I take into account the reality that in addition to admission fees, other out of pocket expenses, such as transport costs, may flow from the necessity for a carer to accompany Larissa to events. This claim capitalises at $12.50 x 760.5 = $9,506.25.
93 This claim is detailed in pars13 and 13A of the amended particulars of claim. It is an agreed fact that the annual cost of Tegretol is $60 per annum and the reasonable cost of pathology tests to monitor the plaintiff's Tegretol intake is $100 per annum. The defendant does not dispute that the annual cost of GP visits is $220 per annum. This is a total annual cost of $380, which is a weekly cost of $7.31. The capitalised quantification of this part of the claim is $5,559.26.
94 The agreed annual cost of the anti-depressant medication the plaintiff is currently taking is $344.40. The defendant submits that Larissa does not have a constant ongoing need for anti-depressant medication.
95 In his report of 28 February 2007, Mr Marriott said Larissa had told him that at high school she experienced bullying in grade 8 [this would have been in 2004] but otherwise "loved it" and she had not been bullied in grades 9 and 10.
96 In her report dated 31 March 2006, Dr Burton reported that the short form Children's Depression Inventory results indicated that Larissa was reporting clinically significant symptoms of depression. Larissa had reported that during the past two weeks she had felt sad many times, particularly at school, cried many days, was bothered by things all the time, and was not sure if things would work out for her. She reported self-dislike, feeling alone many times, and believing there were some bad things about her looks.
97 When Mr Marriott saw Larissa on 8 January 2007 for the purposes of his report of 28 February 2007, he noted that she exhibited no overt behavioural signs of depression, and appeared to be relaxed and content with her life. Amongst the reports that had been provided to Mr Marriott was Dr Burton's report of 31 March 2006, in which she referred to Larissa's symptoms of depression. Mr Marriott said that those symptoms were most likely a reaction to treatment that Larissa had received from her peers, and personal frustration, given her lack of insight into her neuropsychological deficits.
98 When Dr Adler saw Larissa for the purposes of his report of 11 September 2007, he said there were no overt signs of depression and that she appeared to be relaxed and content with her life.
99 In Dr Burton's report of 20 October 2008, she said that Leanne reported that Larissa tended to say in her room for protracted periods, had withdrawn from others and social interaction, and cried often. On the other hand, Larissa said she was happier at the senior school than she had been at the junior school, and although she was being treated for depression, Larissa denied that she was depressed until Leanne talked of the symptoms that Larissa was exhibiting. Dr Burton said that Larissa's responses on the Depression, Anxiety and Stress Scales indicated that she was reporting symptoms suggestive of "extremely severe" depression and "severe" anxiety and stress. As to those responses, Dr Burton commented that it was difficult to know whether Larissa understood the items fully or the extent to which her illness on the day of the test had influenced her responses. Larissa had reported being unable to experience any positive feelings at all, found it difficult to work up the initiative to do things, felt she had nothing to look forward to, felt down hearted and blue, felt she was not worth much as a person, and that life was meaningless. She also reported feeling scared for no reason, felt close to panic a good part of the time, found herself getting agitated most of the time, tended to overreact to situations, and had trouble relaxing.
100 As detailed in Ms Gillam's report of 5 August 2008, for a few months Larissa had been experiencing difficulties in her social relationships at Hellyer College, including bullying from some of her classroom peers. This caused depressive symptoms. Dr Markabawi prescribed anti-depressant medication and on 24 July 2008, he referred Larissa to Mr Marriott for assistance in relation to her anxiety and depression.
101 Mr Marriott saw Larissa on 3 December 2008. Larissa told him that she had become withdrawn and uncommunicative during 2008 following a problem with a girl at school. For the previous two months Larissa had been taking Zoloft, an antidepressant. Mr Marriott said that Larissa had developed a depressive reaction in response to bullying and threats, and that when those activities were addressed and ceased she had been able to recover her normal mood, perhaps with some pharmacological assistance. (He repeated that assessment in his report of 11 March 2009.) He noted that Larissa had historically been found to exhibit depressive symptomatology and said she was frequently going to feel disappointed in the outcomes of her interpersonal interaction due to her lack of insight and her inability to cope with criticisms and threats from her peers. He said that her best chance for developing adequate coping strategies was long-term counselling from a psychologist, and he repeated this in his oral evidence.
102 In the course of his oral evidence, Mr Marriott said that his clear impression had been that Larissa was suffering from reactive depression in response to teasing from her peers, but having talked to Leanne, his impression was that there has been a lot more unhappiness than those upsetting events. He said that his intervention on 3 December 2008 was simply to introduce the idea of a social skills format whereby troublesome events could be rescripted and Larissa could be trained to respond differently in situations that caused unhappiness. He explained that depression was a multi-dimensional concept. In a case like Larissa's it can start with psychological distress through others giving her a hard time, but over time if that psychological distress persists, it can move into a physiological depression, and the sufferer can lose the ability to jolly himself or herself out of it. The sufferer becomes enslaved to the depression and it becomes an illness. It was likely that Larissa would have an episodic need for psychological assistance for the remainder of her life. Her need for treatment would depend on the structure placed around her. The less structure the more likely she would run into personal and emotional difficulties that would result in the need for psychological assistance. At a later point in his evidence he said that episodic needs are unpredictable, but recurrent, so that someone who requires counselling for a chronic problem is likely to require four weekly sessions and then perhaps cope for four or five months and then require another four or five weekly sessions, so it is potentially possible to get by with perhaps 12 consultations a year. He said that generally after about five years there are unexpected changes and it is impossible to predict beyond that period.
103 In her oral evidence Ms Berryman said, as to Larissa's depression, that a good carer going in on a daily basis is a really good sounding board for addressing matters, including depression.
104 In her oral evidence Ms French said that every client with whom she had worked who had the type of impairment that Larissa suffers from, had become depressed. One of the aims of an occupational therapy program is to minimise the onset and degree of depression. Whilst working with people with this type of impairment is a really difficult and challenging environment, great levels of success can be achieved if the program is implemented in a co-ordinated fashion by people who are trained, and the client feels that he or she has ownership over the program. When a person with Larissa's disabilities suffers a significant emotional loss, they may overreact and there may be a deepening of depression. It takes a lot of time and a lot of support to assist a person with Larissa's level of disability through those times. In the course of cross-examination it was put to Ms French that Larissa had recently suffered some depressive symptoms as a result of being bullied at school, had been prescribed Zoloft, had seen Mr Marriott for counselling, and had effectively improved once the bullying had come to an end and she had been given a bit of a lift by the medication. It was put to Ms French that on the evidence the depression was something that would not be constant. Her response was, "No, no - well you would hope not ... I mean it's been my experience that it is certainly episodic."
105 I am satisfied that for the balance of Larissa's life she will be at risk of suffering from depression and she will in fact suffer from depression, albeit on an episodic basis. In these circumstances it may well be that she will be prescribed a maintenance level of antidepressants for the balance of her life in order to ward off depression. The agreed current cost of her antidepressant medication is $344.40 per annum. I will allow this claim in full and keep this in mind when considering the claim made for attendances on a psychologist. An amount of $344.40 per annum is $6.62 per week, which capitalises as $6.62 x 760.5 = $5,034.51.
106 The total claim allowed under this head of damages is accordingly $10,593.77.
107 A claim for counselling is detailed in par16 of the amended particulars of claim. It is advanced on the basis of a recommendation of Ms French in pars7.7 and 7.8 of her report. The recommendation is that Larissa's family have access to individual and group counselling services as required, and that Larissa have access to family planning services and other medical input around issues of pregnancy. Although not mentioned in the particulars, Ms French, at 8.10, also recommends that Larissa be provided with behavioural neuro-psychological support in relation to ways to manage community/social/sexual relationships. As particularised, the claim is put on the basis of bi-monthly attendances on a psychologist for 1½ hours at $200 per hour, which is $1,800 per year and $34.62 per week. This claim capitalises at $26,328.51. The defence did not respond directly to the particularised claim. I am satisfied that some allowance should be made for counselling to be given to Larissa by a psychologist and other appropriate counsellors in relation to sexual matters and the like.
108 In his written closing submissions, counsel for the plaintiff submitted that Larissa would need the assistance of a psychologist for the balance of her life. He relied on the evidence of Mr Marriott to put this need at 12 treatments per year at $200 a session. That is $2,400 per year, $46.15 a week, which capitalises at $35,097.08. In his written submissions responding to this claim, counsel for the defendant submitted that bearing in mind the involvement of a daily attendant carer, four sessions with a psychologist per annum would be reasonable, but for the reasons he set out he submitted that the claim should be discounted by 25%. I will make an award in relation to both of the claims, that is, the particularised claim and the claim advanced by counsel for the plaintiff in his closing address on the basis that it is satisfactorily covered by an amount that reflects four attendances on a psychologist or the like a year, that is, $800 per annum, which is $15.38 a week and when capitalised amounts to $11,696.49. I do not accept that there is any reason for discounting this award. As a general proposition, there is no basis for discounting an award for future hospital or medical expenses for the ordinary vicissitudes of life. See Sharman v Evans (supra), at 587, and Richards v Mills [2003] WASCA 97, par56.
109 This claim was advanced by counsel for the plaintiff in his closing written submissions. It is put on the basis that Ms French estimates the costs of setting up the program at two hours a week for six months, that is 52 hours Ms Berryman estimates it at less because the occupational therapist who sets up the program is not making a fresh start. I will allow the claim in full so as to pick up some of the additional input that will be required from an occupational therapist in the early stages as referred to in Ms French's report, par23.7. The award is, 52 x $120 = $6,240.
110 This claim was advanced by counsel for the plaintiff in his closing written submission. In her report Ms French referred to Larissa's need for the services of specialists, but did not estimate or cost the provision of the service save for estimating the time of the involvement of an occupational therapist. Ms Berryman said that Larissa may need intermittent ongoing care from a physiotherapist, a speech therapist, and a dietitian, and will require ongoing assistance from a psychologist and an occupational therapist. She also agreed that consultants would need to work with Larissa to look at work placement or recreational and diversional activities. As to the fees charged by persons providing these services, where she knew what they charged, she agreed that the usual rate was about $120 per hour and she accepted that as to those whose rates she did not know, a rate of $120 per hour seemed reasonable. Counsel for the plaintiff identified four of these therapists and submitted that it would be reasonable to allow for six one hour visits per year by each therapist for life. That is, 24 hours at $120 per hour, $2,880 per annum, $55.38 per week. The only evidence I have of the likely number of visits or the time involved is in Ms French's report, par23.8. I will allow for fifteen visits per year, that is fifteen hours per year at $120, $1,800 per year, $34.62 per week. This claim capitalises at $26,328.51.
Kip McGrath $1,800
Health Insurance Commission $511.70
112 The amended particulars of claim, par12(d), is a claim for $2,000, which is an estimate of money expended by Leanne on Larissa for which no reimbursement was available. I have not been able to locate any evidence as to this item. It was not the subject of any submissions from counsel. No allowance is made for it.
114 This head of damage is awarded to provide a plaintiff with some consolation for her or his non-pecuniary loss in respect of pain and suffering and loss of amenities. Whilst the award is concerned with the subjective feelings of the plaintiff, this does not mean that her entitlement in respect of that which she suffered as an infant and a child is to be reduced because she has little recollection of it.
115 The plaintiff has suffered and will continue to suffer in a multitude of ways, many of which alone would, upon close examination, warrant a notable award of general damages. I touch on some of them. In her early years she was required to undergo at least three surgical procedures upon her skull, the last occurring in 1999. In order to protect her skull, it was necessary for her to wear a helmet until she began kindergarten. Early on she developed a post-traumatic seizure disorder and has since suffered a number of seizures. In 1997 this was said to be as many as three to four seizures a month. Her last seizure was in about 2002. In order to control her seizures it has been necessary for her to take medication and it will be necessary for her to continue to do so for the balance of her life. By the time she was 8, she had developed a tendency to hyper-extend the proximal inter-phalangeal joints of her left hand which necessitated at least six surgical procedures to that hand. It is hoped that with the cessation of her growth, her joints will become somewhat less mobile and their position will be maintained, nevertheless, further hyper-extension and sub-luxation is a possibility. From time to time she will need to wear splints on her left hand. Her left hand fine motor skills have been substantially reduced. Her gait is poor and she is prone to stumble and bump into things. Her hospital records record that in 2005 she injured her left ankle and in 2006 she injured her right wrist and right ankle. The latter two injuries are related to falls.
116 I will not endeavour to list all that flows from her irreversible brain damage. Her resultant incapacities impact on almost every aspect of her day-to-day life in a way that must remind her of her disadvantages when compared to her peers. Whilst she has in some ways adjusted to this, it is an ever present source of distress for her and diminishes her enjoyment of life.
117 An unusual and significant aspect of her claim is the long period to which it relates, in excess of 80 years. Of course, each aspect of the claim must be assessed on the basis of the period to which it applies. A perusal of Larissa's school reports indicates that as time has gone by she must have become increasingly aware of her disabilities when compared with her peers. She has, to a significant degree, been denied their independence and opportunity to pursue and enjoy physical and intellectual activities. She will never be fully independent. She has a markedly reduced capacity to participate in many of the activities that almost all people have an opportunity to pursue as they progress through life. These include intellectual pursuits, sport, hobbies, household activities and the like, but are not so confined. Her loss relates in some way or another to virtually all of the activities open to people. Her distress and diminished pleasure will be compounded when she leaves the Polytechnic at the end of this year. In a school she has the benefit of a corralled group of potential friends. Hereafter she will be confronted with the reality that she may not participate in many of the joys of life that her peers are taking for granted. She is unlikely to find any meaningful employment, marry or have children, and should any of these outcomes eventuate, the prospect of them being a success will be greatly reduced by her limited capacities. My reference to it being unlikely that she will find meaningful employment relates to her loss of the companionship that many find in employment and to her being deprived of what Mr Marriott aptly described as the particular dignity of employment, which creates a sense of self worth that is irreplaceable. She has been compensated for the loss of her earning capacity and there is to be no overlap between this item of damage and that item of damage.
118 In the absence of any appropriate means of measuring a claim for general damages, subject to the dictates of Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, I have in mind other awards of general damages made in this jurisdiction, recognising, of course, that the value of money has changed over the years.
119 I award the plaintiff $200,000 by way of general damages.
Aids to activities of daily living. Eating and drinking. Cooking and meal preparation
121 The plaintiff is currently subject to administration. Following this verdict her damages will be administered by the Public Trustee. The plaintiff needs an administrator because of the disabilities in respect of which she is entitled to damages. She is accordingly entitled to damages for the cost of administering her award of damages, Willet v Futcher [2005] HCA 47; (2005) 221 CLR 627. The matters to be taken into account in determining this cost have been addressed in the evidence and Mr Sarjeant has addressed this cost in accordance with the evidence and applicable authorities. The cost is determined by reference to the amount of the plaintiff's damages that is to be paid to the Public Trustee which is $2,167,582.98, less special damages of $2,311.70, $216,527.28. As to the calculation of this cost, a document prepared by Mr Sarjeant dated 24 March 2009 was put into evidence. In it he assumed that within 90 days $120,000 of the amount paid to the administrator for the plaintiff would be withdrawn, and thereafter the balance of that amount would be reduced to zero by uniform annual withdrawals during the life of the fund. My expectation is that in the early period of the fund the total amount of the withdrawals that will be made in order to set Larrisa up will be greater than $120,000. The cost of a suitable unit is estimated at $153,000, the cost of setting up a rehabilitation and carer program has been allowed at $6,240, and a number of items and services for which provision has been made will require a greater than normal injection of funds in the early period of the fund. Other matters that I pay regard to in applying Mr Sarjeant's calculation of the administration costs are that it relates to the period since Larissa turned 18 years of age and the possibility of early death.
122 Mr Sarjeant's calculation of these costs incurred on a fund of $2m is 31.8%, and on a fund of $3m is 32.1%. I will adopt 30%. Accordingly, the award I make under this head of damages, is $649,580.
123 Adding the above to the damages detailed in par120, the plaintiff is entitled to an award, rounded up, of $2,817,200. She is awarded damages of that amount.
# Dobson
Jackson \[2009\] TASSC 118
(1985) 184 CLR 485
(1968) 122 CLR 649
(1977) 138 CLR 563
(1968) 119 CLR 118
(2005) 221 CLR 627