Easther v Amaca Pty Ltd

Easther v Amaca Pty Ltd - [2001] WASC 328 - WASC 2001 case summary — Zoe

[107]

76 Dr Dean maintained that anaesthetic drugs had now reached the stage where the plaintiff's pain could be controlled but that it would require an operation inserting a small plastic tube adjacent to the plaintiff's spine which would be fed up the spinal cord around the level of the chest. The tube would enable drugs such as morphine or fentanyl to be administered directly on to the spinal cord in doses which block the pain locally without getting into the circulation which causes general side effects. Dr Dean said that he was 99 per cent certain that such treatment would be required in the plaintiff's case. Dr Dean said that with such treatment the plaintiff could expect to have good pain relief but it would involve inconvenience in terms of hospital time and going through the procedures including carrying pumps around. Dr Dean also said that if the tumour spread to other parts of the body then the plaintiff may not be able to get adequate pain control from the intra thecal catheter which may require supplementation by oral medication. Dr Dean said that to insert the apparatus requires a day in hospital under general anaesthetic including the installation of an infuser port for injection of the medication. Dr Dean said that the pump involved which would be attached to the plaintiff externally costs about $7,500. The advantage to the plaintiff of having the pump externally would be that the medication could be adjusted manually. The pump that he recommended for the plaintiff being an external pump weighed about half a kilogram and contained a cassette which holds 100 mls of fluid. The external pump was expected to cost $7,500 rather than $15,000 for a subcutaneous internal pump. In addition the plaintiff would be required to spend $20 a day for the drug mixture and the hospital costs would be $3,000. In addition the plaintiff would require 7 to 10 days hospitalisation plus imaging fees to check that the tube is in the right position. Assuming that this will be done before the hospice end stage (as is likely) the cost will be $11,700.

[132]

"Here, of course, it was found that the existing partnership arrangements would very probably have continued into the future. In this case, then, it was found that, but for the accident, the future would have reflected the past. But finding that past partnership arrangements would probably have continued into the future, had the plaintiff not been injured, does not inevitably mean that the calculation of the damages to be allowed for loss of future earning capacity must be limited by reference to the amount of the plaintiff's share of partnership profits. Again, if Seymour v Gough [1996] 1 Qd R 89 was intended to establish such a proposition, it is wrong and should be overruled.

To explain why that is so, it is necessary to return to basic principles. Those principles are not in doubt. It is the application of those principles that has produced differences of opinion. The appellant submitted that contrary views to those in Seymour v Gough have been expressed elsewhere in Australia. And it may well be that the dominant view in States other than Queensland, and, indeed, in other common law jurisdictions, is not the view adopted in Seymour v Gough. But the decisions reached in particular factual contexts must not be permitted to obscure what we have referred to as the basic principles.

Those principles require identification of what earning capacity has been impaired or lost and what financial loss is occasioned by that impairment or loss. In the present case there is no doubt that the capacity that the appellant lost was a capacity to earn whatever he could have earned working as a block layer. But the enquiry does not stop at what the appellant could have earned. It is necessary to ask what loss the appellant suffered because of the diminution of that capacity and that invites attention to what would have happened but for the negligent infliction of injury (as best a court can predict that future course of events). The latter question (what would have happened but for the negligent infliction of harm) was said to be answered, in this case, by identifying that it was highly probable that the partnership at will would have been maintained but for the occurrence of the accident. But it is necessary to consider the content and consequences of that conclusion with some care."

[150]

"[56] In Burnicle v Cutelli the capacity which the plaintiff lost was one which she had exercised prior to the accident - that is, she already had a family for whom she cared. The same position applied in Sturch v Willmott. That is not the case here. The appellant did not have children until after the accident. Notwithstanding that factual difference, the question for determination is the same as that which arose in Burnicle v Cutelli - mainly, whether damages to compensate for the loss of the capacity to care for dependent children is compensable, and if so, what is the measure of the compensation payable. In Burnicle v Cutelli it was held that whilst the loss of capacity was compensable, it only sounded in general damages.

[57] When this appeal was originally argued neither party made reference to Burnicle v Cutelli. In my opinion, if that decision was to stand, it would govern the outcome of this part of the appellant's claim so as to restrict the plaintiff to having this part of her lost capacity reflected in general damages only. Although making no reference to Burnicle v Cutelli, the trial Judge clearly applied the principle stated by the majority that such a claim sounds only in general damages.

[58] For my part, I cannot see any logical basis for the distinction drawn in Burnicle v Cutelli between the measure of damages in a traditional Griffiths v Kerkemeyer claim and the measure of damages for the loss sustained by the inability to care for a dependent child. The decision does not, in my opinion, reflect the true nature of a claim of this type, based as it is in a loss of pre-accident capacity which gives rise to a specific post-accident need: see Nguyen v Nguyen and Van Gervan v Fenton. It is for this reason that the matter was re-listed for further argument.

[59] On the further argument in the matter, senior counsel for the respondent accepted that Burnicle v Cutelli appears no longer to be good law. It will be clear from what I have said that I consider that to be the case. A person who has lost the capacity to care for a child or children is entitled to be compensated on the same basis as a traditional Griffiths v Kerkemeyer claim."

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (159 paragraphs)

Easther v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2001] WASC 328 (30 November 2001)

Parties

Cases Cited (14)