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[2001] QSC 287
Supreme Court of Queensland
2001-07-02
Ambrose J
Original judgment source is linked above.
BRISBANE No S 5829 of 1999 [2001] QSC 287
CHRISTOPHER DANIEL GOODE (by his next friend)
CATCHWORDS: TORTS - NEGLIGENCE - Contributory Negligence - Road Accident Cases - apportionment of responsibility and damages - when a 12 year old child whilst crossing a road struck by motor vehicle - failure to keep a proper look out - failure to give warning by approaching vehicle - failure to reduce speed - whether the first defendant had discharged her duty to take precautions to guard against and avoid the accident - the degree of care owed to a 12 year old child - failure to keep in mind the propensities of a child who may sometimes act impulsively - the extent of the plaintiff's conduct involved a substantial departure from the standard to be expected of an ordinary child of 12 years - relative culpability of adult driver of motor vehicle and child pedestrian.
DAMAGES - General Principles - Griffiths v Kerkemeyer principles - Gratuitous past and future care - when the plaintiff was in hospital whether gratuitous care from the next friend/mother was required - whether it is proper to make allowance for the attendance of parents at hospital - whether it would be unfair to require the defendant to pay damages for gratuitous care based on agencies' costs, when no such costs have been incurred.
Public Trustee Act 1978 (Qld), s 65(1), s 67(2), s 80(1)(d) & (c)
Beasley v Marshall (No. 4) (1986) 42 SASR 407, considered.
Griffiths v Doolan [1959] Qd R 304, considered.
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, applied.
Grincelis v House (1998) 84 FCR 190, applied.
Grincelis v House [2000] HCA 42; (2000) 201 CLR 321, applied.
Gunning v Fellows (1997) 25 MVR 97, followed.
Jones v Moylan [No. 2] [2000] WASCA 361; (2000) 23 WAR 65, followed.
Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, considered.
Lynch v Nurdien [1841] EngR 52; [1841] 1 QB 29, cited.
Marinko & Anor v Masri [1999] NSWCA 364; (2000) AustTortsR 81-581, considered.
Marsland v Andjelic (1993) 31 NSWLR 162, applied.
Mott v Fire and All Risk Insurance Co Ltd [2000] 2 Qd R 34, applied.
Nguyen v Nguyen (1990) 169 CLR 245, applied.
O'Connell v Brisbane City Council & Another [1966] QWN 26, applied.
Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10, cited.
Porter v Tisco Pty Ltd [1964] QWN 14, considered.
Re DJR and the Mental Health Act, 1958 [1983] 1 NSWLR 557, considered.
Redding v J.F. Thomson & Anor SC No 2902 of 1984, 14 October 1988, considered.
Rowes Bus Service Pty Ltd Cowan; Sufong v Cowan [1999] NSWCA 268; (1999) 29 MVR 430, considered.
Settree v Roberts [1982] 1 NSWLR 649, followed.
Sharman v Evans [1977] HCA 8; (1976) 138 CLR 563, followed.
Thompson v The Council of the Municipality of Bankstown [1953] HCA 5; (1952) 87 CLR 619, cited.
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, applied.
W v Q [1992] TASSC 62; [1992] 1 TASR 301, cited.
Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523, considered.
Winterton v Mercantile Mutual Insurance [2000] QCA 249, considered.
Counsel: Mr S. Williams QC with R.J Lynch for the plaintiff
[1] At about 3:45 p.m on 8 October 1996, the plaintiff, who was then 12 years of age and returning home from school, was struck while crossing Main Street at Hervey Bay by a motor vehicle driven by the first defendant.
[2] The plaintiff suffered a very severe head injury, as a consequence of which his earning capacity was destroyed and he will need full-time care and attention for the rest of his life.
[3] As a result of his injury, the plaintiff suffers from post-traumatic retro grade amnesia and has no recollection of events leading to it.
[4] Only 3 people were interviewed who seem to have observed events leading to the plaintiff's injury. One was the first defendant, who was driving the car when it collided with the plaintiff. The other 2 people, who were walking along the footpath of Main Street, gave statements to the first defendant's insurer or its agents as to the events which they observed preceding the collision.
[5] Plaintiff's counsel tendered statements taken from the first defendant and those 2 independent witnesses to establish negligence against the defendants.
[6] The first defendant was called to give evidence and it is upon her statement tendered by the plaintiff and her oral evidence and the statements taken from the two independent observers, and some photographs that were taken of the scene of the collision, upon which the issues of negligence and contributory negligence must be determined.
[7] There was no evidence of measurements taken at the scene. I found photographs taken 6 months after the accident of assistance; the most helpful were Exhibits 36, 39 and 42. I thought the slope of Main Street to the south suggested in Exhibit 37 may have been a little exaggerated in light of other photographs - due possibly to the position from which it was taken.
[8] In a statement given to her insurer about 8 months after the collision, the first defendant said that at about 3:45p.m on the day of the collision she was driving her employer's motor vehicle in a southerly direction in Main Street approaching the "T" intersection of Main Street and Doolong Road which joins Main Street to her left - i.e proceeding off Main Street in an easterly direction. She said that the trafficable bitumen surface of the side of Main Street, along which she was proceeding, was about 7 metres in width. She said that when she was about 300 metres north of the intersection, she observed a young man standing "upon the eastern kerb of Main Street" about 24 metres south of the south-eastern corner of the intersection. She said that as she approached this person, her speed was between 50 and 55 kilometres per hour. At 50 kilometres per hour she would have been travelling at a speed of about 14 metres per second. She said she saw the young man standing in the immediate vicinity of a telephone booth and he "was in discussion with other young people who were standing in groups on the parking tarmac" which adjoined a shopping complex adjacent to Main Street. The photographs, and particularly Exhibits 36 and 42 and 44, to my mind, make it most improbable that she could have seen onto the "tarmac" until she drew level with its entrance onto Main Street shown in Exhibit 44. She said that she assumed that the young man and the people he was talking to were school-children because she was aware that students used to congregate on the parking area of the shopping centre after school finished and before they dispersed to go home.
[9] She said that as she approached the north-eastern corner of the intersection - the one opposite the corner on which the telephone box was located - she observed that the young man remained stationary in the position in which she had first observed him, with his back towards her but his face turned towards the parking area and apparently in discussion with his school friends. She said that she crossed Doolong Road and when she was "at the vicinity of" the south-eastern corner of the intersection she observed that the young man was still stationary upon the eastern kerb of Main Street and apparently still talking to his school friends. She said that her speed remained between 50 and 55 kilometres per hour and she estimated that the schoolboy was still standing in a position about 24 metres south of the south-eastern corner of the intersection. She said that she travelled half that distance - ie about 12 metres past the south-eastern corner when she observed the schoolboy "turn suddenly to his right, executing a 90 degree turn and commence to sprint across the road from the eastern to the western side of Main Street." She said that at no time did the schoolboy look towards her and at all times had his back towards the direction from which she was travelling, except "when he actually exposed his right shoulder immediately prior to impact, his head still looking back towards the tarmac." She said that when she saw the child run out in front of her vehicle she steered right to such an extent that about ¾ of the width of her vehicle entered upon the north-bound carriageway. Her vehicle struck the schoolboy near the left-front headlight of her vehicle. The force of the impact catapulted the schoolboy towards the footpath, where she said she had seen him standing, so that his body came to rest with his feet in the area of the kerb and channelling off Main Street on its eastern side, and with his head towards the centre of the roadway. She said that for some considerable time after the accident, skid marks, which her vehicle had left, were clearly visible on the road surface. She said that when the schoolboy swung to his right and "commenced to sprint across the road" she did not have time to blow the horn of her motor vehicle. She said that her vehicle was in an excellent state of mechanical repair and was a very quiet vehicle.
[10] The first defendant was called to give evidence and I will analyse that evidence shortly. At this stage I will merely observe that witnesses who have had no reason to observe events preceding an event which attracts their attention, sometimes tend to reconstruct an observation of events of which they perceived no reason to take any notice prior to the event which attracted their attention. Their estimates of distance, speeds and locations from which observations were allegedly made must be considered carefully when assessing their reliability.
[11] What the first defendant did say in her statement was that when she was something in the order of 300 metres north of the intersection, she had first seen the plaintiff in a stationary position, from which he did not move until she was about 12 metres from that position. I assess that evidence in the light of the photographs Exhibits 36, 39 and 40. She said that she travelled between 50 and 55 kilometres per hour until she took avoiding action about 12 metres from his stationary position. I assess that evidence in the light of Exhibit 42. On these estimates and figures, she must have had him under her observation for about 20 seconds before she reached the intersection. Her recollection is that she was still travelling at that speed - ie about 14 metres per second or a little faster - when she was 12 metres away from him when she first saw him, suddenly and without warning and with his back towards her, commence to run across the road looking backwards towards the shopping centre as he did so. According to her evidence and particularly considered in the context of photographs tendered at the hearing, he must have run at least 6 metres from his stationary position to the point of collision which occurred close to the middle of the roadway (vide exhibits 39 and 41). If her estimates of speed and distance were accurate, it would seem that in about a second or perhaps fractionally longer, while travelling a distance of about 12 metres she had swerved her car from where it was travelling in about the middle of the south-bound carriageway to a position where ¾ of its width was on the north-bound carriageway while at the same time applying the brakes of her vehicle and during that short period of time the plaintiff ran across from a stationary position near the footpath to a position close to the centre of the roadway - a distance of between 6 and 7 metres.
[12] In my judgment, an analysis of this version of events casts doubt upon its reliability.
[13] The oral evidence given by the first defendant does not strengthen her case. She gave evidence that when she saw "a young boy standing with his back towards me on the left hand side near the kerbing" he appeared to be talking to somebody. She said that she kept driving because he had not moved. She said that she continued in a southerly direction and would have been only "10 to 15 metres" from him when "just all of a sudden he ran". She said he did not look in her direction but was still running with his head facing in the opposite direction to that in which he was running when he ran straight out in front of her car. She said that she jammed on the brakes and swerved to her right towards the north-bound lane. She said that as she got closer to the boy she observed that he was wearing a school uniform. She did say, however, that he was standing "out on the edge of the road near the gutter" but on the other side of the telephone box (ie on its southern side) as she approached it. She later said she thought that he was on the edge of the gutter (which is shown in the photographs). She reiterated that when she first saw the boy he was not standing on the footpath but to the contrary, was "in the gutter on the side of the road." She said that between the gutter and the edge of the carriageway proper upon which she was travelling there was a distance of about 3 metres. This was covered with bitumen and is clearly shown in the photographs (in particular Exhibit 39). She said she did not attempt to slow her speed as she approached the schoolboy and the only reason she "focused on him" was because he was "sort of" near the roadway. She said that she did not expect him to run out in front of her and that is why she did not slow down because she was so close to him. She said she just kept driving the way she normally did. She said that she thought the boy was 12 or 13 years of age from his height. The second defendant's agent taking this statement, I assume, was aware of the plaintiff's age at the time of his injury. She said that she was aware that children sometimes do silly things when crossing a road and observed that lots of adults also do silly things. She said that she observed him simply to be a schoolboy standing on the edge of the road; she was not watching him, she was watching where she was driving. She said that what attracted her attention to him, when she was 10 to 15 metres from him (she had previously said 12 metres in her statement) was the movement that he made as he commenced to run out onto the roadway. She said that when she saw him he was 3 or 4 metres from the path her vehicle was taking and that her attention was first attracted to him when she saw him "actually take off from the edge of the gutter". She denied seeing him on the footpath at any stage. She said he had never been between her and the telephone box (ie. on its northern side) as she was approaching him, and that she had never seen him walk across the footpath and commence to proceed across the road. She said she did not ever think, when she saw him standing on the road near the gutter, that he was in the process of commencing to cross it; she thought he was merely standing there talking to other school children over on the footpath. She said that he did not run across the road diagonally but that he ran directly out into her path. She said that after she had swerved to avoid colliding with him, she could not believe that she had actually hit him concluding that she had not "swung hard enough". She said in the witness box, that her recollection was that the first thing she did when she saw the plaintiff running towards the path of her car was to brake and that she then turned the steering wheel. She said that at the point of impact at least half of her motor vehicle would have been over on the north-bound carriageway. She said that the first time she realised the person she saw standing on the edge of the roadway was a schoolboy was when she was about 50 metres north of the northern side of the Doolong Road intersection. I assess this evidence in the light of Exhibits 36 and 40.
[14] On 7 August 2000 a statement was taken on behalf of the second defendant from Daniel Stephen Hunjas. At the time of the accident he said that he was walking in a northerly direction along the eastern footpath of Main Street with his girlfriend, Bonnie McElhenny. They were both on their way to work at the shopping centre, which is shown in the photographs (vide exhibits 42 and 43). He said that he was walking in a northerly direction about 75 metres to the south of the intersection (vide exhibits 39 and 41) when he first noticed a young boy who appeared to be about 10 years of age walking along the footpath. He said the boy walked across the footpath on the northern side of the telephone box. He said that he did not notice whether there were other school children on the footpath, but he did notice that the child had his head lowered and was not looking where he was going; he seemed to be looking down to the ground over which he was walking. He said the boy walked across the footpath onto the road, took a few steps on the road and then for some reason burst into a sprint. He said he observed the first defendant to be driving in the centre of the south-bound lane as the young boy stepped from the footpath onto the roadway and observed that she swerved to avoid him. He said he did not really take much notice of the car until the collision was imminent. He said that he first observed it when it was only a few metres away from the point of impact with the plaintiff. He said he remembered that the plaintiff was carrying a schoolbag because after the collision its contents were spread on the roadway. He said that he did not at any time observe the plaintiff standing before he saw him walking. He said he could not really recall where he had been standing on the footpath - if he had been. His attention was apparently drawn to the boy when he saw him walking across the footpath on the northern side of the telephone box and then commencing to walk in a diagonal fashion across the road. He said that before the accident the plaintiff was walking towards the centre line "on an angle" so that his right shoulder would have been directed towards the north-bound traffic lane. This seems consistent with the evidence of the first defendant as to the profile of the plaintiff as he moved from the edge of the road towards its centre - although not consistent with her evidence as to the direction in which he was running. He said that by the time the boy stepped onto the road he was a couple of metres to the south of the telephone box. (vide exhibit 42)
[15] His girlfriend, Bonnie Ann McElhenny, was about 17 ½ years of age when she observed the plaintiff's injury. She said that she was walking to work with her boyfriend at about 3:45 p.m on the day in question when she saw a "young boy" step out from behind the phone booth. She said "I think he noticed a car as he was crossing the road and as he noticed it he ran and by this time the woman had swerved to miss him but he ran into the front-left hand corner of the car." While evidence of this kind may be criticised as involving opinion, hypothesis and reconstruction etc it does record the impression which the observation of events leading to the plaintiff's injury made upon her in the seconds which it must have taken for events to unfold. She said that as the first defendant's car approached the scene of the accident, she "seemed pretty central." She said that when the boy walked out she heard the brakes of the first defendant's car go on as the driver attempted to swerve to avoid him. She said that the first defendant's car crossed the line in the middle of the road but because the boy had started to run, the collision still took place. She said that when she first observed the first defendant's car, she was "nearly to the corner" and not very far from where the boy had stepped out (vide exhibit 42). She said that the whole event occurred pretty quickly, within a few seconds. She said "She had a bit of time. That's why she has swerved. She knew what was going to happen. She must have thought he was going to stop but he ran." While opinions and speculation of this sort of themselves are of limited evidentiary value, they are original evidence of and consistent with the plaintiff having been observed to commence to walk across the road and to have increased his walking pace to a running pace as the first defendant's car approached him.
[16] She said that there were 2 or 3 "other kids" on the footpath behind the phone booth as she approached it (ie to the east of it or perhaps to its north). She said she saw 1 or 2 other children maybe 3 at the most and could hear them talking and giggling as she approached the telephone box. She said that they were on the footpath "just a little bit behind him". She said the plaintiff had been standing on the footpath "just behind the phone booth." The photographs indicate that she could have seen right through the glass walls of the phone booth as she approached it from the south (vide exhibits 38, 39, 40, 44 and 45). She said she saw him walk out from "behind the phone booth" onto the road at something of an angle. She said that as he walked across the road he stopped momentarily and then started running. She said that by the time the first defendant had brought her car to the corner of the intersection, the plaintiff would have been on the road. She said she observed the first defendant "slam on her brakes" and that by the time her car collided with the plaintiff, the first defendant was going more slowly than she had been at the time her brakes were applied, although not very much more slowly. Again she reiterated that the plaintiff had walked out a couple of steps onto the roadway "noticed the car and then he probably ran 2 or 3, you know, jogs. He would have pretty much almost been on the centre line." She said that he would have been about 1 or 2 feet from the middle of the road when the first defendant's vehicle collided with him. She said that the first defendant's car was half way over the white centre line as she was swerving to avoid the plaintiff, but he ran into her. She reiterated that when the plaintiff first stepped onto the road he was walking but then as the first defendant's car approached he started to run. She said it seemed to her that he was running as fast as he could, just prior to impact. She expressed the opinion that if the plaintiff had not moved off from the position where he had stopped on the roadway initially before he started to run the first defendant would have missed him completely. She said that the first defendant had "slowed down dramatically from the time she hit the brakes to when she hit him."
[17] Although the evidence of Mr Hunjas and Ms McElhenny was not tested in cross-examination, I find it sufficiently persuasive to conclude on the balance of probabilities that prior to the plaintiff walking/running upon Main Street as the first defendant approached the point of impact, he had been talking with other school-children on the footpath on the northern side of the telephone box. I am persuaded that, had she been keeping a proper lookout, the first defendant would have observed the plaintiff with or near those children well before she commenced to cross the intersection and would have observed him commence to walk across the footpath at an angle to the kerb and onto the roadway following a course which would take him across the road at an angle to its eastern kerb into the path she was taking, with his back turned towards her as she approached him. I reject her evidence that the plaintiff was stationary in the vicinity of the eastern kerb of the roadway until she was only 10 to 15 metres from him. Upon the evidence of the independent witnesses, I find, on the balance of probabilities, that as the first defendant approached the point of impact with him, the plaintiff at the material time was stationary, if at all only momentarily, after he had walked a couple of metres across Main Street before he attempted to sprint across the rest of the eastern carriageway of the roadway.
[18] In preferring the evidence of Hunjas and McElhenny (albeit not tested by cross-examination) to that of the first defendant, I take the view that the version of events given by the first defendant in both her statement and oral evidence, is less persuasive than that given by those witnesses in their statements. It would be natural and understandable that the first defendant would be prone to reconstruct events which she had not observed in a way which would exculpate her with respect to the plaintiff's injury. Upon my assessment of her demeanour as a witness I would not for one moment infer that she did so consciously.
[19] Over the last century and a half there have been many statements of principle relating to the nature and extent of care mature people owe to children generally known often to be lacking in judgment and often unappreciative of risks apparent to people of more mature age. It would be unprofitable to examine in detail the many statements of such principle commencing in Lynch v Nurdien [1841] EngR 52; [1841] 1 QB 29 and restated a century later in Thompson v The Council of the Municipality of Bankstown [1953] HCA 5; (1952) 87 CLR 619.
[20] The only rational explanation for his commencing to sprint across the balance of the eastern carriageway after taking a couple of paces across it and momentarily halting is that the plaintiff halted when he realised the first defendant's motor vehicle was bearing down upon him and then instead of stepping backwards, attempted to run out of her way. Her swerve to the right, however, led to the collision when he had almost reached the centre of the carriageway.
[21] I refer to a recent restatement of principle by the Court of Appeal in New South Wales in Gunning v Fellows (1997) 25 MVR 97.
[22] That was a case where the facts were not entirely dissimilar to those in the present case. The defendant in that case had the 12 year old plaintiff in view over a distance of 80 metres. The plaintiff was standing with 2 companions of similar age with a push bike on a footpath with a steep driveway leading from it onto the carriageway along which the defendant was driving. As the defendant approached the driveway, the child pedalled his bicycle down the driveway and increased the pace of his pedalling as he crossed the gutter onto the carriageway along which the defendant was driving and she collided with him. He suffered very serious injuries and was unable to give evidence at the trial.
[23] A master found the motorist guilty of negligence and apportioned responsibility for the child's injury at 75% to the motorist and 25% to the child.
[24] Beazley JA analysed various cases decided in New South Wales (and one in South Australia) including a decision in Settree v Roberts [1982] 1 NSWLR 649, where Hope JA had observed at page 4 -
"Seeing a group of young children so close to the side of the trafficable portion of the road, even though their backs were turned to that portion of the road, the defendant had a duty to take appropriate precautions to guard against the event that one or more of the children might do what children have a well know propensity of doing, that is move suddenly out onto the road: cf Mye v Peters (1967) 68 SR (NSW) 298. That one of the children might so act was a possibility which the defendant ought reasonably to have foreseen and guarded against. There was ample time and ample room for her to adopt some course of action to avoid the risk of an accident; she took none. (slowing down or by adopting other courses available to her) ... she would have given both the plaintiff and herself a greater opportunity of avoiding the accident. The use of the horn would have warned the plaintiff of the danger created by her approach."
[25] Turning to the facts in Gunning, Beazley JA observed -
"Master Greenwood found that from the point of view of the appellant (the motorist) driving west on Ashmont Avenue he was able to see three children and the bike, as I have said, at a minium distance of 80m. Given the degree of vigilance and responsibility required of a driver in the circumstances of this case, I am of the opinion that the appellant clearly breached the duty which he owed to the respondent to become aware of the presence of the children on the footpath and as Master Greenwood found, to have been aware of the impulsiveness of a young boy of about the age of the respondent to ride down a steep driveway. The appellant in those circumstances was required to keep an eye on the children to see what they might do and to be in a position to take preventative action, if necessary, such as to have sounded his horn, to have slowed down and if necessary to have braked and swerved so as to avoid a collision."
[26] A further relevant consideration in this case is the fact that outside an entrance to school grounds it is not unusual to find road signs requiring a reduction in speed from 60 km/hr to 40 km/hr shortly before, during and shortly after school attendance hours. Reasonably thoughtful motorists must attribute this required reduction in speed limit to a community awareness that some school children, because of immaturity, sometimes act suddenly, foolishly and impulsively without taking care to avoid obvious risks to their personal safety. While of course the school which the plaintiff attended was well away from the place of his injury, the first defendant was well aware that school children used to congregate near that place before dispersing to walk home. With that knowledge as she approached that place, she should have taken the care which is appropriate when approaching the entrance to a school to or from which school-children might cross the road outside it.
[27] Upon my analysis of the evidence in this case the first defendant was guilty of negligence which was a cause of the plaintiff's injury in:-
(a) failing to keep a proper lookout as she approached the plaintiff whom she observed to be a child of 12 to 13 years of age in company with or at least conversing with other children to ensure that she could stop, slow down, or take action to avoid colliding with him should he move towards the path of her vehicle as he had indicated he might do, being apparently unaware of its approach;
(b) failing to give him any warning of her approach as she crossed the intersection when she should have foreseen that there was an appreciable, if not indeed likely, prospect of his attempting to cross the roadway in the path of the vehicle she was driving, apparently being unaware of its approach;
(c) failing to reduce significantly the speed of her motor vehicle as she approached the plaintiff as he was preparing to cross and/or was commencing to cross the roadway with his back towards her being apparently unaware of its approach;
(d) failing to keep in mind the propensities of children to sometimes act impulsively and without mature judgment when she observed or should have observed his advancing towards and proximity to the point of her impact with him.
[28] With respect to the issue of contributory negligence, I am content to apply what was said in Gunning v Fellows (supra).
[29] The only matter argued upon appeal in Gunning was the apportionment made by the master for contributory negligence. Having referred to observations in Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at 16 Beazley JA continued at 100 -
"In this case the respondent, although not a very young child, was still not quite 12 years of age. The appellant was able to see him at least from about 80m before the point of collision.
Having regard to the fact that a motor vehicle of its nature is able to inflict a greater injury than is a bike and taking into account the fact that the very duty including the standard of care, which is imposed on the appellant, so as to recognise that children often act suddenly, impulsively and without thought or perhaps to adopt the language of senior counsel for the appellant stupidly and illogically, I am of the opinion that the Master's assessment of contributory negligence was within an appropriate range having regard to the circumstances."
[30] I find that the plaintiff was guilty of contributory negligence. He clearly kept no better lookout for his own safety than did the first defendant. But by his inadvertence and lack of care for his own safety he put nobody at risk but himself. On the other hand, the first defendant's failure to keep a proper lookout and to take precautions against the very sort of foreseeable childish conduct in which the plaintiff did engage leading to his injury as she drove a large motor vehicle towards the path, which he was obviously intending to take and was indeed taking, seems to me to be much more culpable than his negligence. In my view, had she been keeping a proper lookout she would have realised the likelihood that the child had not observed her approach and should then have slowed down and sounded her horn. She did none of those things until she was within 10 to 15 metres of the child, who I am satisfied by then had embarked upon a crossing of the road without adverting to her approach and had reached a position some metres to the west of the eastern kerb of the roadway. When he became aware of her approaching; in a split second decision, he elected to proceed forwards rather than remain stationary or go backwards.
[31] In Griffiths v Doolan [1959] Qd R 304 Wanstall J, in a case somewhat similar to this where the injured pedestrian was a child 5 ½ years of age, assessed her share of responsibility for her injury at 10%.
[32] In Porter v Tisco Pty Ltd [1964] QWN 14 Lucas AJ, considering a somewhat similar case where the injured pedestrian was an adult, found that his proportion of fault was 40%. Similarly in Rowes Bus Service Pty Ltd Cowan; Sufong v Cowan [1999] NSWCA 268; (1999) 29 MVR 430 a 17 ½ year old school girl, who was injured when she walked into the path of a vehicle from a position where her presence was obscured by a stationary bus used by adults and children, was held 40% responsible for her injury. In Redding v J.F. Thomson & Anor (SC No 2902 of 1984) de Jersey J on 14 October 1988 held a 9 year old child 50% responsible for his injury. The child's conduct was "considered as having involved a substantial departure from the standard of care to be expected of an ordinary child of nine years". Apportionment required comparison of the relative fault of the motorist who drove a truck in the middle lane of three inbound traffic lanes at a time when his headlights and street lights were on and that of the child who had crossed three outbound lanes and one inbound lane in dark clothing before the motorist observed him when about 20 feet away, but who nevertheless had almost stopped his vehicle before impact.
[33] Upon my analysis of the apportionment in that case, the motorist had no reason to believe he was or might be driving towards the path that might be taken by a 9 year old child across a six lane roadway from his right hand side. His negligence was his failure to observe the child as he crossed three outbound and one inbound traffic lanes in hours of darkness. In my view the apportionment of fault in that case lends no assistance to the apportionment of fault in this case because the fault of the driver here upon the facts is attributable to a significant degree to the perceived age of the child walking in broad daylight towards and over the edge of the carriageway and then upon it with his back towards her in circumstances from which she could readily infer his intention to continue to walk across it in the path of her vehicle, and her failure to take care to avoid the foreseeable danger to the child which would result if she failed to give warning of her approach and/or reduce her speed.
[34] In Gunning v Fellows, which I have analysed, the child's share of responsibility was assessed at 25%.
[35] In my view the relative fault of the first defendant in this case is greater than was the case in Gunning v Fellows. Had she been keeping a proper lookout, she should have been aware that a school boy of 12 or 13 years of age, intent upon crossing the roadway in her path and apparently unaware of her approach, had commenced to cross it and she failed to take any precautions to bring to his notice her approach or to slow down her vehicle.
[36] Having regard to the cases to which I have referred as an indication of the way apportionment for contributory negligence has been made over the last 40 years in cases involving infant plaintiffs injured while crossing roadways, I apportion fault for the plaintiff's injury at 20% to the plaintiff and 80% to the first defendant.
[37] At the time of his injury the plaintiff was a little over 12 years of age attending Kawungan State School from which he had walked on the day of his injury presumably with school friends of a similar age to the scene of the accident. He was then in year 7 and reference to his first semester school report indicates that his teacher then concluded "Chris displays a sound understanding of all areas of year 7 work. He shows particular interest in science and computer studies." A comment upon his performance by the principal of that school on 13 December 1996 was -
"Has trouble socialising - negative attitude to school - left KSS 27.5.96 - enrolled school of distance education - re-enrolled KSS 22.7.96 as school of dist. education wasn't solving his problem - has not attended school for term 4 due to hospitalisation after car accident."
[38] It appears from the school report that during his first semester attending that school he was absent for a period of 30 days. Presumably he had returned to the Kawungan State School during the second semester and had been attending that school for a little over two months at the time of his injury.
[39] It is clear that the plaintiff had difficulties when he commenced school. He had difficulty socialising with other children and coping with school discipline. He became depressed and from time to time apparently very angry. Eventually he was diagnosed as having Attention Deficit Disorder but it was observed that he was within "the gifted range". Tests then conducted indicated that he was performing within the high to high average range of intellectual activity. The diagnosis of the ADD led to him been given a drug Ritalin but he did not stay on that medication. He had difficulties at a number of schools that he attended in his junior years because presumably some of the teachers with whom he came into contact were not trained or able to cope with his reactions attributable to whatever condition from which he then suffered. Subsequent medical opinion has doubted whether he really did suffer from ADD.
[40] It seems, however, that efforts were being made at the time of his accident to reintegrate the plaintiff into the ordinary state school education system after his parents decided that the distance education to which he had been subjected for a couple of months in the middle of the 1996 school year was not succeeding.
[41] Prior to his injury, however, the plaintiff participated in various sporting activities, although he did not play any organised team or competitive sports. He seemed to be interested in scientific matters and in using telescopes, microscopes etc and preparing programs for his home computer.
[42] In the collision, the plaintiff suffered fractures in the right basal and occipital regions of his brain with cerebral oedema. He was transferred to the Mater Children's Intensive Care Hospital principally for that injury. As well as his head injury, he suffered a fractured right pelvic ischium. He received intensive therapy at the Mater Children's Hospital until 21 October 1996 and was discharged from that hospital on 31 January 1997. He had a prolonged phase of post-traumatic amnesia and exhibited bilateral spasticity. His left side was more greatly affected than his right. He suffered visual impairment and the problems were worse with his right eye than with his left. He also exhibited behavioural problems. I accept as accurate the resume of injury contained in the report of Dr Wallace (exhibit 13).
[43] Eventually the plaintiff attended special schools but his behavioural problems and constant headaches and inability to cope with other people, even in the special school environment, required constant attention - which he seems to have received from members of his family. In September 1997 when examined by Dr Wallace, the plaintiff was slightly obese and demonstrated impulsive, obsessive and repetitive behaviour. His coordination was reduced and he walked with a wide based gait. There was evidence of left hemiparesis and other motor neurone signs to both sides but more to the left than to the right. He had mild bilateral optic atrophy and a left homonymous hemianopia. Twelve months after his accident he was experiencing headaches which upset him emotionally and caused uncontrollable hand shaking. He experienced associated visual hallucinations. Drug therapy gave some control of these conditions. He was observed to exhibit a lot of frontal lobe type behaviour with disinhibition, impulsive and repetitive behaviour. He had exhibited some obsessional behaviour prior to his accident but it had become very significant and disruptive as a result of the injuries he received in the accident. He then needed constant attention by his mother to train him the way a two year old needs training. His impulsive behaviour with his reduced coordination was a danger to him. He seemed to have no awareness of the likely consequences of his actions. Assessments prior to his injury had placed the plaintiff in the average to above average range of ability in various areas. Subsequent to his injury however, he was found to have a full scale IQ of 66 with a verbal IQ of 73 and a performance IQ of 64. This indicates a greatly reduced cognitive function. At that time he was in a special education system and Dr Wallace observed that there could be improvement in his cognitive function for a period of 4 or 5 years after his injury. That is up until about September 2001. Dr Wallace was of the view that the plaintiff was going to require significant ongoing support in the areas of his life involving motor skills, cognitive skills and visual skills as well as by reason of his abnormal and really socially unacceptable behaviour. He would require significant ongoing support in all these areas. Some improvement might be expected over a few years.
[44] It is unnecessary to analyse subsequent reports given by Dr Wallace, who last examined him in 1998 when he expressed the view that he then required close supervision in his day to day activities 24 hours per day and would be a danger if left unattended. He expressed the view that, should the care and attention of his family be removed, his behavioural abnormalities may well be exacerbated. He said that, because of his condition, the plaintiff needs familiarity with his environment and changes cause stress; he needs to be with somebody who is familiar to him to permit a quick intervention should it become necessary. In the absence of such attention it was the doctor's view that his condition would deteriorate and the deterioration might require large amounts of medication not necessary at the moment to keep him under some sort of control.
[45] Dr Wallace said that, in his view, a group home accommodating a number of people with an intellectual deficit where supervision, assistance etc is provided to each member of the group by the same carers on a shift basis would be difficult for the plaintiff because the conduct of other persons needing similar care may well exacerbate his condition. This would be particularly so if there were a number of carers to some of whom he might react differently. Dr Wallace expressed the view that the best environment to control the plaintiff was one where he was subjected to the attention of a carer or carers with whom he was familiar. If the plaintiff were accommodated with other people in a "group situation" he would still require a very high degree of "one-on-one" care.
[46] While the plaintiff initially suffered major seizures, those ceased with medication about 2 years ago. He will need life long medication to control them. When the plaintiff does suffer from a seizure, even a mild one, it exacerbates his behavioural and other problems.
[47] According to Mr Johnson, a psychologist who examined the plaintiff first in December 1997 and has done so subsequently, the plaintiff's behaviour is such as to require supervision to keep himself and the community at large safe. He is unable to entertain himself for any length of time. He has a very limited capacity to control his impulsive behaviour and this condition will definitely endanger him if he were left unsupervised. Mr Johnson said that if the plaintiff were looked after in a "group home" he would need to be very well supervised by a highly skilled carer used to dealing with people with his sort of brain injury and level of disinhibition. He would require 24 hour supervision in a group home and if he was left alone with other residents needing treatment - particularly overnight - very considerable problems could arise. According to Mr Johnson the plaintiff's need for attention would not change, whether he was in a group home or in a family environment. At whatever place he is cared for he will have a high need for interaction with other people. He said that his familiarity with the people in his home was an important aspect of his treatment/control; he said that if placed in environments with which he is unfamiliar, where he comes into contact with people unfamiliar with his condition, who are less tolerant of him, then his behaviour will worsen substantially.
[48] It will always be necessary for people who come into contact with the plaintiff to know how to deal with his particular mental problems.
[49] Mr Johnson said that the plaintiff would always require "at least a moderate level of supervision"; he said that a "high level of supervision was one which required one to one care at arms length 24 hours a day"; he said that the plaintiff's need was "slightly below" that level. Mr Johnson said that he was familiar with the "group situation" which mostly involved accommodation and supervision of a group of four, five or six people. He said that, of the group homes with which he was familiar, some had full time carers and some had carers only at some times. Some do not have permanent carers at all residing with the occupiers of the house but only some that visit on a regular basis.
[50] He said that the plaintiff's behaviour could be so extreme and unacceptable that his presence in a group situation might not be tolerated. He said that the plaintiff might become violent or sexually promiscuous or might attempt to become sexually active with other residents or perhaps become threatening to a carer if he did not get his own way. This potential conduct could only be controlled by a carer or carers highly skilled in behavioural management techniques who understood the nature of the disinhibitive behaviour persons suffer as a result of the type of brain injury inflicted on the plaintiff.
[51] In a group caring situation involving a number of carers working in shifts to provide 24 hour one-on-one supervision and control, not merely would the plaintiff be put at risk by his lack of familiarity with those carers, but it would be very difficult for the plaintiff with his brain injury to avoid personality clashes with other persons receiving care. If for some reason, perhaps unpredictable, he developed a dislike for another person, he would be unable to control his impulsiveness and perhaps become violent. Mr Johnson said that unless a very tight rein is kept on the plaintiff to control his behaviour - as his mother and other members of his family have kept a rein upon him - his behaviour would become "virtually uncontrollable". He said that certainly anybody with sufficient skill and understanding could keep as tight a rein on him as his family but that many carers lack such skill and understanding. He observed that the plaintiff had not been able to control his behaviour sufficiently to be acceptable in sheltered workshops, which indeed have people who are trained to deal with persons with behavioural problems.
[52] When Dr Warlow, a psychiatrist, examined the plaintiff about 12 months after his injury he said that his age had "regressed" and that he presented more as a child of between 3 and 6 years of age than as a 13 year old child. He thought at that stage that he may improve to some extent over the next five years or so. However, he observed that most recovery from the sorts of head injuries suffered by the plaintiff was achieved within the first six months or thereabouts. He said that affective or psychotic disorders, as well as personality problems, might well exaggerate adolescent conflicts in the plaintiff. Twelve months after the injury he had a severe level of disability and the probability was that time sequelae in terms of his mental, physical and social functioning would require long term rehabilitation and would lead to a quite different lifestyle from that which he would probably have had but for the head injury.
[53] In a second report, after considering reports from other experts and interviewing the plaintiff and his mother, Dr Warlow concluded that the plaintiff was probably wrongly diagnosed prior to the accident as suffering from Attention Deficit Hyperactivity Disorder and that conclusion was supported by Professor Nurcombe. He concluded that there had been "possibly some slight improvement in his presentation which was probably explicable by the stable and positive containment" provided by his family. However, he observed that there is a possibility of a future decline in the plaintiff's functioning as he gets older and wants to become increasingly independent and "adolescent in his personality", which he says at this stage has not occurred to the plaintiff. It was observed that the plaintiff was incapable at age 16 of reading books which were written for children of a significantly younger age. He has compulsive behaviour including touching hot irons, clapping for no apparent reason, banging his head and sometimes holding up his penis in a public setting. However, Dr Warlow said he did not appear, at this stage, to have any mood related problems and seems to be happy and not over anxious. The medication he takes is apparently responsible for his happiness because it has helped to reduce anger rages and obsessions. His anti-epileptic medication and other medication for migraine headaches have also assisted him to not become overly anxious or upset. In Dr Warlow's view, the plaintiff's behaviour at the time of trial was comparable to that of an impulsive child of 8 years of age who in good spirits frequently interrupts conversations with happy although inappropriate jokes. He was observed to be fidgety and from time to time momentarily to shake his head from one side to the other. The plaintiff gave the impression of a child who was mildly mentally retarded with marked cognitive changes in terms of disinhibition, concentration and organisational difficulties with some compulsive behaviour. He said that the plaintiff's impulsivity and disorganisation with the marked deterioration in his IQ as a result of his injury overlapped and combined so as to aggravate each other. He agreed with Professor Nurcombe's report that, of people who do suffer from ADD as a child, approximately 50% recover by adulthood and the balance are controlled with appropriate medication.
[54] He said that, but for the excellent support he had received from his family, and particularly his mother, since his injury nearly five years ago, the plaintiff would be significantly worse than he is now. If he is less contained in his behaviour than he is currently in his family environment, this will result in vicious cycles of further problems. He has no prospect of employment in the future. Neither does he have matrimonial or family development prospects. It was Dr Warlow's view that the plaintiff will need the level of care he is now receiving from his mother and immediate family in the future. He said that a shift of care from his family into a group housing accommodation would be highly detrimental to the plaintiff. A shift into such accommodation "could be the commencement of a slippery slope which if not caught in early stages could result in significant decompensation for himself and an inordinate amount of community resources to try and contain that. He has an adolescent body but not an adolescent mind...The hormones are there, the need to socialise to some extent with people of similar age is there." Dr Warlow said that he would be afraid that in a group accommodation care situation the plaintiff would get into impulsive acts of a criminal nature or could easily become involved in substance abuse under the influence of others. Even if he were living in a group housing environment, he would nevertheless require a similar degree of one-on-one attention to that which he is currently receiving from his mother and other family members. I must say I am unpersuaded on the probabilities that he would receive comparable attention in such an environment to that which he presently receives in his family environment.
[55] He said that the plaintiff needs to be in the presence of or close by an adult all the time and it would be impossible for him to live on his own. I accept this evidence.
[56] Dr Warlow found it difficult to forecast what the effect would be on the plaintiff if he were perhaps 40 years of age (ie in 23 years time) should he then lose care comparable with that given to him currently by his mother and other family members. He observed "if he was 40 he would have matured further. His adolescent turmoil would have subsided. By then he would have a much more stable history behind him. I think that's a very different scenario from if that was to occur now".
[57] Dr Warlow said that a periodic change in carers working in shifts giving a 24 hour supervision and care, would be devastating to the plaintiff because, with his condition, it was the maintenance of the same acceptable carer which was critical because stability and sameness is very important to his capacity to function even as well as he is able to currently. It is very important for his care and treatment that he forms a personal attachment to his carer and the fewer carers the better. It will always be important that his family connection be maintained for as long as possible.
[58] At the time of trial the plaintiff was attending the Aitkenvale Special School. It is clear on the evidence that his eligibility to attend that school will cease at the close of the school year in 2001. While he has been attending it, he has been in a structured environment where he has had a one-on-one teacher aide familiar with his disability to stay with him and guide and control him during his school attendance. That school attendance has been 6 hours per day five days per week. His mother said that when he is not attending school, she constantly spends time trying to find something for the plaintiff to do that will hold his interest. She said that, once she finds him something to do, he is able to amuse himself for 10 minutes but then wants something else to do. She said he is now beginning to be able to sit a little longer than he has been able to do in the past. She said that he really needs to be the centre of attention of his carer for the time being for about 14 hours per day.
[59] The plaintiff obviously has difficulty walking. He walks guardedly, appearing to drag one side of his body. He does not seem to be able to move his left foot with ease and appears to drag it along after him. She said that sometimes he has difficulty walking around corners and she has got into the habit of holding his arm when he walks with her. She said that when he is walking in the shops, if somebody bumps into him, he may fall over because his balance is bad; she said he seems to have difficulty seeing without turning his head in the direction in which he wishes to observe something. He seems to walk into things if walking by himself. He has difficulty reading, even books he is able to comprehend; because of his eye problems he seems able to read one half of the page. He has actually learned to turn his head as he reads a line to overcome this problem.
[60] In 2000, he fell over because of problems in walking, and broke an ankle. He was confined to a wheelchair for 3 months. Should he have a setback - such as his broken ankle - he forgets how to do things that his parents have trained him to do, such as getting food for himself. He then has to be retrained.
[61] On one occasion he opened the door of a car in which he was being driven and tried to get out as it was proceeding along the road. He is now driven in a car with childproof locks and is not allowed to sit in the front seat because he tends impulsively to seize control of the steering wheel. She said that, within 18 months of his injury, the plaintiff acted like a 2 year old knowing nothing and she has had to teach him everything that he now seems to know. She said that although the plaintiff currently appears happy about everything, he gets cranky if things "go out of routine."
[62] The plaintiff suffered a rupture to the anterior crucial ligament of the right knee. Dr Bartlett said that he had a mild motor impairment of the lower limbs involving some 10% loss of function. He has a contracture of the ankle joint, as a consequence of the head injury which he sustained, which limits the function of the limbs. He has a moderate range of motion loss in the ankle joint and in the muscles. He has a full range of motion in the hips. He suffers from a contracture to the tendo achilles which requires constant exercise to control. He said the asymmetry effected in the plaintiff's lower limbs impairs his balance. This puts him at risk when he is caught unawares on uneven ground etc.
[63] According to Dr Gillett there is a possibility that the plaintiff may need scoliotic surgery and hip surgery in the future. Dr Bartlett, however, regarded such a possibility as remote. Dr Gillett said that the plaintiff's neurological disability sustained in the collision affected his tendons and muscles in such a way as to cause the muscles to contract. He has an imbalance in muscle activity tone and performance involving various joints on his left side; he has an equines deformity to the left heel because the left calf muscle has tightened causing the tendo achilles to become tight. This gives him an abnormal gait which has an effect on his left hip joint. He has also developed a deformity in relation to his spine resulting from an imbalance of muscles.
[64] The plaintiff is led into physical activity by his mother on a daily basis which exercises his calf muscles by stretching them so as to prevent or inhibit their shortening. If those exercises are not maintained or if they do not succeed in allowing him to walk properly, then surgical intervention is available to lengthen the tendon. It may also be necessary to involve operative procedures behind the ankle. The need for such operation will arise if the Achilles tendon shortens to such an extent that the plaintiff will not be able to place his heel on the ground as he walks. He will only be able to walk with his heel raised off the ground with the ball of his foot on the ground. Dr Gillett said that when the plaintiff finishes growing and his skeletal development has finished, consideration might have to be given to such a tendon stretching operation. He said he will be at risk of the need for such operative treatment as he grows older. He said that the plaintiff should not have such an operation at the moment, while he is still mobile. Such an operation is a risk because it might turn somebody who is disabled in their gait into somebody unable to walk. He said that the medical costs of such an operation at the moment would be between $2,500 and $3,000. He was unable to give any estimate as to hospital costs except that he would expect that intensive therapy would be needed after such an operation.
[65] When the plaintiff broke his right ankle joint in 2000, he had internal fixing devices applied. They were serving no purpose by the time of trial and Dr Gillett is of the view that they should be removed because they are close to the surface and risk causing the plaintiff pain. Dr Gillett said that there was about a 10% chance of the need for scoliotic surgery to assist the plaintiff to keep his balance. He said that the deformity in the scoliotic region from which the plaintiff presently suffers will not worsen after his skeletal growth finishes. He said there was a risk of him needing such surgery over the next five to ten years. He said the plaintiff may need an osteotomy or an excision arthroplasty or even a total hip replacement should he have problems with his hip as he grows older. He said the plaintiff's unaffected hip is normal but the hip affected by his neurological problems changes the dynamics of the hip joint which then puts a stress on the joint tending to cause "the hip then to migrate out of the socket". Dr Gillett said it was probably unlikely that the hip would dislocate as a consequence of the neurological problem from which the plaintiff suffers but as it migrates laterally different forces are exerted on the hip joint; pain can result if this happens.
[66] I turn now to the assessment of the plaintiff's damages.
[67] I have described in some detail the injuries from which the plaintiff has suffered. He will need very substantially one-on-one care for the rest of his life. His brain damage has resulted in grave intellectual impairment. He has been left with an epileptic condition and regular headaches both of which need medication. He has been left with spasticity. As well as the orthopaedic injury which he suffered in the injury his neuronal problems have produced hip problems and a problem with his Achilles tendon which has put him at risk when walking on uneven ground or even when bumped in a crowd. He has already fractured one ankle as a result of a fall attributable to the impediment on mobility and balance attributable to his brain injury. It is not improbable that he will hurt himself again as a result of that lack of balance. He has little insight into his pitiable condition - due to medication he takes and to the unfailing care and support which his family and particularly mother and father give to him.
[68] I assess general damages under this head at $150,000.00. I assess interest on $50,000.00 of that sum at 2% for 4.75 years which amounts to $4750.00.
[69] The plaintiff was born on 23 March 1984 and was injured on 8 October 1996, being a little over 12 years of age and in Year 7 at school. Had he not been injured and had he completed his schooling to Year 12, he would not have completed his schooling prior to trial. It is contended that he probably would have earned pocket money from about age 15 working as a shop assistant or fast food outlet employee. The award rate for such employment for people over the age of 15 is about $5.20 per hour. A calculation has been made on the basis that he would have worked about 10 hours per week comprising 3.5 hours on Thursday night and 6.5 hours on Saturday. It is further contended that he would have worked an additional 15 hours per week during the 10 week school holiday periods. Having regard to the amount calculated the plaintiff would not pay income tax.
[70] It appears that neither of the plaintiff's brothers took the opportunity to do such part-time work. The plaintiff's father, of course, was apparently in a position where he could have arranged for such work for the plaintiff's brothers but they were uninterested in doing it. While undoubtedly the plaintiff's capacity to do such work was destroyed by his injury, in my view there is only really a 50% chance that he would have earned that money, accepting that he had the capacity to do so. I have had regard to the calculations in the White Perry report (exhibit 33). I assess economic loss to trial in the sum of $3,700.00, I award interest on that sum at 5% per annum for one year only, which amounts to $185.00.
[71] It is very difficult to predict the likely years of employment that would have been open to the plaintiff but for his injury. He had another five years of schooling to complete. It is difficult to predict whether his interest and skills in computers would have continued or whether his grade 7 capacity in matters scientific and mathematical would have continued to year 12. It is also difficult to predict whether, upon completion of his schooling, he would have continued on with studies at TAFE or some other secondary educational institution to obtain qualifications which would give him the prospects of either more secure or better paid employment in the future, or both.
[72] I propose, therefore, to assume that, had he not been injured, the plaintiff would probably have spent a couple of years attending TAFE part-time and completing studies while employed. I have regard to the appendices on the White Perry report which is Exhibit 33. I do not find the "average weekly earnings catalogue" particularly helpful. I have regard to the Public Service Award - State (Pay levels) for "administrative stream" which is appendix 3 to the White Perry report. I assume that it applies at the present time (more or less) and that aged 18, 19 and 20 the plaintiff would receive an average of $19,724.50 gross per annum which is $379.31 per week. After tax of $53.00 he would receive about $326.00 per week during this period. Using the 5% table the present value of the loss of that sum for three years is $47,596. From age 21 to 28 he would average a weekly salary of $1,066.75 gross. After tax of $287.00 that would approximate $780.00. Using the 5% tables the present value of the loss of $780.00 per week for eight years is $233,122.34. That loss postponed for three years is $201,371.01.
[73] Between age 29 and age 65 (36 years), I select a 7.1 level of $1,120.10 per week as being the probable average salary range over that period of 36 years. The tax on that sum would be $ 306.00. I therefore assess the future economic loss of the plaintiff for a period of 36 years at $814.00. nett per week. The present value of the loss of that sum using the 5% tables is $720,390.00. Postponed for 11 years using the 5% table it amounts to $421,212.03.
[74] All told, therefore, I calculate the future loss of income of the plaintiff in the sum of $670,179.00. I discount that sum by 15% to take into account contingencies and problems that the plaintiff may have had in maintaining his employment and potential for advancement by reason of his personality. I therefore assess the plaintiff's future economic loss in the sum of $569,652.15.
[75] I assess the loss of superannuation at 6% of that sum in the sum of $36,684.42.
[76] In assessing the plaintiff's claim for past care needed and for the need for future gratuitous care (and eventually future professional / commercial care) by reason of the injury he suffered on 8 October 1996, I must apply the principle enunciated in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 - particularly per Mason J at 193-194. The defendant must pay for the services reasonably required to satisfy the need for which the plaintiff's disability gives rise. Whether or not the plaintiff has paid or will have to pay in the future monies to satisfy that need is an irrelevant consideration. In this respect I refer to Nguyen v Nguyen (1990) 169 CLR 245 at 2623 per Dawson, Toohey and McHugh JJ.
[77] In Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 it was held that damages payable under a Griffiths v Kerkemeyer claim are to be assessed not by reference to the actual costs that would be payable by the plaintiff but by reference to the market cost of providing those services. At page 335 in the judgment of Mason CJ, Toohey and McHugh JJ it was observed -
"It does not seem reasonable that the defendant's liability to pay damages should be reduced at the indirect expense of the provider by invoking notions of marital or family obligation to provide the services free of charge or at less than market rates. Yet post-Griffiths awards have been reduced on this or similar theories. Moreover, a plaintiff should be entitled to arrange his or her affairs in the way in which that person pleases and should not be constrained by monetary considerations from dispensing with gratuitous services and obtaining outside services if they are desired. Indeed, the relationship between the provider and the plaintiff may continue to exist in some cases only because outside help is able to be obtained. Secondly, since there is no binding agreement with the provider to continue to provide the services, the Court would have to make a finding as to whether the care would continue to be provided and, if so, for how long. The task of reliably determining whether a person will continue to provide personal services on a voluntary basis is much more difficult than the task of determining the traditional types of hypotheticals which come before the courts in damages cases, such as whether a plaintiff is likely to obtain employment or whether a medical condition is likely to improve or worsen...
The use of the market cost criterion enables the plaintiff to be properly compensated by the award of a reasonable sum whether or not the gratuitous care provider continues to provide that care."
[78] In Marsland v Andjelic (1993) 31 NSWLR 162 Kirby P and Meagher JA observed at 174 -
"However, in light of the decision in Van Gervan, it would appear that what is nowadays to be taken as a reasonable objective measure of damages will invariably be the commercial market cost."
[79] They went on to observe that it is wrong to reduce the quantum of damages for support which would "commonly be expected from a member of the family"; to do so was to proceed contrary to the principle laid down in Van Gervan.
[80] In Grincelis v House (1998) 84 FCR 190 the Federal Court of Australia held that satisfaction of the appellant's need for full time care was the commercial value of that care which included a live-in allowance for a commercial care-giver. The care had in fact been rendered by the plaintiff's parents and a live-in allowance initially had not been included. Hill and Kiefel JJ at 207 observed -
"In our respectful view the only basis apparent from the Master's reasons for what is a very substantial reduction in the award for this head was a concern that the cost of the parent's services appeared to be too much. The evidence however required such a conclusion, it follows in our view that the award must be increased...."
[81] In Grincelis v House [2000] HCA 42; (2000) 201 CLR 321 the High Court considered whether interest should be allowed on past Griffiths v Kerkemeyer damages and, if so, at what rate. The majority held that interest on Kerkemeyer awards for past care was payable and should be calculated at a commercial rate of interest - notwithstanding the fact that the services had been provided gratuitously and no outlays had in fact been made. The majority observed at 327 -
" In Van Gervan v Fenton, it was held that the true basis of a claim for damages with respect to care or services provided gratuitously to a person who has suffered personal injury is the need of the plaintiff for those services, not the actual financial loss suffered as a result of their provision. Accordingly, it was held in that case that a plaintiff's damages on this account are not to be determined by reference to the actual cost to the plaintiff of having the care or services provided, or by reference to the income foregone by the provider of the services, but, generally, by reference to the market cost of providing them. Neither party sought to reopen the decision in Van Gervan."
[82] For the defendants however, it is contended that in Winterton v Mercantile Mutual Insurance [2000] QCA 249, in a judgment delivered on 23 June 2000, the Court of Appeal distinguished Van Gervan v Fenton where the circumstances were similar to those in this case. Although the judgments in that case make no reference to Van Gervan v Fenton analysed in the Full Court of the Federal Court in Grincelis v House (1998) 84 FCR 190 (the High Court decision in that case on appeal was delivered on 3 August 2000, subsequent to the judgment of the Queensland Court of Appeal in Winterton), I do not read that decision as rejecting the principle so clearly stated in Van Gervan and reapplied in both the Full Court of the Federal Court and the High Court in Grincelis v House. In this case the plaintiff has applied for the market cost of providing intensive care of the sort the plaintiff's mother and father gave evidence was provided to the plaintiff at no cost.
[83] Susan De Campo gave a report of 22 February 2001 which is Exhibit 35 where she accurately summed up the care given to the plaintiff by his family -
"The most crucial aspect of support provided by Mr and Mrs Goode would be described as ongoing behavioural modification and reinforcement. In the event that Chris's parents could not care for him, Mrs Goode is hopeful that his brothers and/or close friends will provide full-time care for Chris.
Since his accident, Chris has received 24 hour/day care assistance and/or supervision. This care if required on a commercial basis would be provided utilising a rotational roster. The "sleepover" component would also apply. So called live in care is not a viable option outside those who have a vested interest in the person. We would expect this level of assistance to be ongoing. Commercial rates in accordance with the Disability Workers' Award - State, for the designated period have been provided accordingly.... The charge out cost is noted followed by (i) the hourly gross wage paid to the carer -
Sleepover rates 2200hrs-0500hrs (Carers may be disturbed up to 3 times/night)
01.09.99 to 31.07.00 (Sleepovers unavailable prior to this time)
[84] The figures provided by Susan De Campo were not challenged. One matter to note is the very significant agency costs of $5.00 per hour over and above the gross wage of $10.00 per hour paid to the carer on the first line. This agency cost has increased from September 1997 to the date of trial. The current hourly wage paid to a carer on a public holiday is $39.55 per hour. The agency cost, however, for providing such a carer is nearly $17.00 per hour.
[85] One matter that requires consideration is the fact that, although the plaintiff's mother seems to be constantly on call during both the waking and sleeping hours of the plaintiff, in fact, she manages to look after the rest of the family and the house and pursue her own interests and sleep most nights without undue disturbance. It is contended for the defendant that it would be ridiculous to assess damages for past Griffiths v Kerkemeyer care on the basis of the costs of a commercially provided carer or carers in attendance upon the plaintiff (and particularly during the night time), in case their services are required from time to time, at the commercial rates to which I have referred. Further, it is contended that on the facts of the present case with respect to past care - whatever the future may hold in this regard - agent's fees have not been paid or incurred. It is said that it would be quite unfair to the defendant to require it to pay damages assessed on the basis that gratuitous care provided by the plaintiff's mother and other members of his family should be valued on what it would have cost had it been provided through an agent charging fees of the sort indicated above to provide carers whose hourly rates include "sleep" "weekend" and "Public Holiday" rates.
[86] In my view, however, while the principle in Griffiths v Kerkemeyer and Van Gervan v Fenton remains applicable, it is difficult to see how such "unfairness" may be avoided.
[87] In any event if the principle enunciated in those cases is thought anomalous or unsatisfactory it must be corrected upon a "reopening" of those cases in the High Court or by legislative intervention.
[88] The majority of the High Court in Grincelis v House (supra) at 327 remarked that the parties in that case did not seek "to reopen the decision in Van Gervan" and both Kirby J at 332 and Callinan J at 341 remarked that the parties did not "seek to reopen" the principle accepted in Griffiths v Kerkemeyer; perhaps they were dissuaded from doing so by the observation in Kars v Kars [1996] HCA 37; (1996) 187 CLR 354 at 372.
[89] It is convenient to set forth the schedule of calculations advanced by counsel for the plaintiff to support a claim of $254,379.60 for gratuitous care provided principally by the plaintiff's mother, but also from time to time by other members of his immediate family, between date of accident on 8 October 1996 and date of trial - a period of 240 weeks.
8:10:1996-24:12:1996 (HOSPITAL PERIOD) 12 hours per day ( see
77 days at $10.28 per hour ( av. of weekday/weekend rate as per exhibit
1997 at school 42 weeks @ 8 hours per day x 5 days per week @
1997 weekends- 104 days @ 14 hours per day @ $11.00 p.h.
1997 holidays (weekdays)- 10 weeks x 5 x 14 @ $10 p.h.
1998 at school 42 weeks @ 8 hours per day x 5 days per week @
1998 weekends- 104 days @ 14 hours per day @ $15.45 p.h.( av. of
1998 holidays (weekdays)- 10 weeks x 5 x 14 @ $11.93 p.h.( av. of
1999 at school 42 weeks @ 8 hours per day x 5 days per week @
1999 weekends- 104 days @ 14 hours per day @ $19.42 p.h.( av. of
1999 holidays (weekdays)- 10 weeks x 5 x 14 @ $13.06 p.h.( av. of
2000 at school 42 weeks @ 8 hours per day x 5 days per week @
2000 weekends- 104 days @ 14 hours per day @ $20.96 p.h.( av. of
2000 holidays (weekdays)- 10 weeks x 5 x 14 @ $14.00 p.h.( av. of
2001 at school 27 weeks @ 8 hours per day x 5 days per week @
2001 weekends- 64 days @ 14 hours per day @ $24.20 p.h.
2001 holidays (weekdays)- 5 weeks x 5 x 14 @ $15.90 p.h.
[90] The hourly charges for care are based upon Susan De Campo's evidence. The hours in respect of which the charges are made are based upon the evidence of the plaintiff's mother that during week days, when he attends school, she has him consistently under her care and supervision for 8 hours per day, while in holiday times and during the weekend she has him under her care and supervision for 14 hours per day. When he attends school, of course, he is out of her care for 6 hours per day. At that time he has been under the care of a teacher's aide trained to deal with his condition. No claim has been made in respect of the cost of providing that aide's care and supervision, which has been met by the first defendant's insurer. When the school year ends towards the end of 2001, it seems clear that the gratuitous care then needed by the plaintiff will probably be 14 hours per day each day of the week. This, however, is a matter for consideration with respect to the claim for future care.
[91] One matter to note is that the hourly charges are based upon what a "personal care attendant / in home attendant" would receive under the Disability Worker's Award - State for the periods in question.
[92] No challenge was made to the accuracy of the calculations.
[93] In respect of past care, the plaintiff does not seek to recover the commercial charge out rate for a competent carer which would be payable to agencies retaining such carers. The calculations which I have indicated, that are not really challenged, assume that a carer might be obtained for the hourly entitlement under the award. This calculation would seem to ignore possible obligations upon an employer to provide workers' compensation cover and perhaps paid leave. Perhaps the rates specified are casual rates which, if paid, do not give a carer leave entitlements. These were not matters that were canvassed in detail and consequently I will proceed on the basis that the plaintiff does not seek to obtain an award of damages based upon what it may have, or indeed probably would have, cost for a carer retained through an agency with the professional ability to check the experience and suitability of a carer it selects to care for a person with the plaintiff's type of injury. It is unnecessary, then, for me to do other than accept the award rates upon which the plaintiff relies.
[94] I will merely remark that in Grincelis v House (supra) in the Full Court of the Federal Court, the cost of obtaining the necessary care was also calculated by reference to award rates and necessary allowances. I refer to pages 207 and 208.
[95] While the plaintiff may well have argued that the principle applied in Van Gervan v Fenton would permit him to recover what he would have to have paid if he had obtained a carer provided in the way in which, presumably, most such trained people are provided - through an agency at the rates specified by Susan De Campo - it is unnecessary for me to determine that matter because he has not sought to recover the commercial cost of a carer on that basis. It may be arguable that the commercial value of gratuitous care should be calculated ignoring agency costs because agency services have not been provided in this case. If gratuitous care had been provided through an agency, presumably the value of that care would include agency costs. I have regard to the decision in the Full Court of the Federal Court in Grincelis v House that the commercial value of a full-time carer would include a live-in allowance. The master in that case had apparently reduced the "commercial cost" of a full-time carer in respect of past care provided by the family of the plaintiff because in fact they lived in the family house in any event. It was held that a proper quantification of the gratuitous past care in fact given by the plaintiff's family required a calculation as to what that cost would have been had it not been given by the family, and that included a live-in allowance.
[96] The only matter which I wish to address with respect to the calculations for past gratuitous care is the first sum of $9498.72, being the cost of 77 days of attendance by the plaintiff's mother for 12 hours per day at the hospital from the time of the plaintiff's admission on 8 October until the time of his discharge on 24 December. It is clear from the schedule of calculations the basis upon which the rate of $10.28 per hour was arrived at. There was no debate about the method used in arriving at an average rate. Although the matter was not debated in argument I have some reservation as to whether the plaintiff reasonably needed the care his mother gave him when she attended hospital during the whole of the period of 77 days in respect of which the claim is made.
[97] Mrs Goode gave evidence that the plaintiff was unconscious for about one month, although hospital records suggest that the period may have been closer to 3 weeks. At the end of that period he "progressively awoke". She said she attended the hospital for 12 ½ hours per day during this period on a daily basis.
[98] Once the plaintiff had regained consciousness his mother talked to him and tried to establish some sort of contact with him. The doctors at the hospital seem to have encouraged her to do what she did. She said "they were happy for me to do that - they were very understaffed." She said that she used to change the plaintiff and change his sheets and feed him and that the nurses were grateful for the help that she gave. She said she also, throughout the days, made sure that she regularly and frequently gave him the physiotherapy treatment that had been prescribed. She was able to give him physiotherapy treatment frequently whereas, apparently, this was beyond the capacity of the nurses in the hospital because it was very short staffed. She said that the plaintiff's hand use to "spasm" and that she spent most of the day giving him flexing exercising. She said splints were also put on his legs during the day about 4 times a day. She said that "in the early days" each ½ hour she would be doing something to give assistance to the plaintiff. It took him some time before he was able to recognise her and she started to retrain him to speak and converse with people shortly after he regained consciousness about one month (or perhaps 3 weeks) after he was admitted to hospital.
[99] He was discharged in her care in a wheelchair on 24 December 1996. At that stage he had not learnt to walk either with a walking frame or crutches. He was still incontinent, as he had been in the hospital, which led to his mother changing him and the nappies that he wore and bedclothes etc when she attended him there.
[100] Long before Griffith v Kerkemeyer, in Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523 Taylor J held that it was proper to make an allowance to permit a plaintiff to provide for the reasonable attendance of her parents at a hospital where she was confined because of serious injury - which was "such as to call for such comfort and consolation as her parent's reasonable attention could provide". He observed at 528 -
"Her parents' visits were no doubt considered to constitute part of the care and attention rendered necessary by the consequences of the defendant's negligence"... and that... "it was of some importance in the alleviation of her condition that she should have the comfort and assistance of her parents."
[101] Subsequently in O'Connell v Brisbane City Council & Another [1966] QWN 26 Hoare J considered a case where a plaintiff claimed the loss of 2 weeks wages sustained by his father who had to travel to the hospital where the plaintiff was being held with very serious injuries. Adopting what Taylor J had said in Wilson v McLeay Hoare J observed -
"It seems that the appropriate test of recoverability of items of this nature...is whether the attendance of the parent could be said to be reasonably necessary in the interest of the patient. As to whether an attendance is reasonably necessary, the problem should be approached in a broad common sense manner. Obviously a doting parent can not cease work during the entire period of his child's stay in hospital, however prolonged, and expect a tortious defendant to reimburse him. However in the instant case we have to consider a very young child who has suffered grave injuries which placed him on the dangerously ill list for 48 hours... Under these circumstances I consider it reasonable in the interests of the child, for the father to cease work for two weeks so as to ensure the attendance of one or other of the parents throughout the normal waking hours of the child for the period of 2 weeks...."
[102] Although the matter was not canvassed in the course of addresses, the plaintiff's mother gave only brief evidence as to what care she gave to the child while he was unconscious during his first 3 or 4 weeks in hospital. As I understood her evidence she gave a great deal of assistance to him and gave him care that would not otherwise been available to him in hospital between the time he regained consciousness and the time he was discharged from hospital. There is no direct evidence from her that she gave him physiotherapy while he was "unconscious." She did say however, that "especially in the early days" - which I assume to be during the period of his "unconscious," she would give physical care to the plaintiff at least every ½ hour. It may well have involved her giving him passive exercises while he was in her view still unconscious.
[103] The plaintiff's mother was not cross-examined on this aspect of her evidence.
[104] Although, in my view, the evidence is light with respect to the actual care the plaintiff's mother gave to her son during the first 3 or 4 weeks of his stay in hospital when he was "unconscious," she did give evidence that not a half hour would pass without her giving him some care that he needed during this period of his hospital stay.
[105] With some reservations, therefore, I infer that the care she gave him with the acquiescence, if not the encouragement of the hospital staff (the hospital ward was then understaffed) who were apparently appreciative of the special care and attention that the plaintiff's mother gave him, was "reasonably necessary" for the care of the plaintiff, who, of course, was in the intensive care unit, and the medical and hospital reports indicate that he was in a very serious condition.
[106] In the absence of cross-examination on this point I am persuaded that the care that his mother gave to the plaintiff during the first 3 or 4 weeks of his hospitalisation was reasonably needed by him for the injury the first defendant inflicted upon him. It may not have been "essential" having regard to the facilities available in the unit - particularly when he was on hyperventilation in the early stages of his treatment. With some reservations, therefore, it seems to me that during most of the time that Mrs Goode spent at the hospital with the plaintiff during the 77 days he was kept there as an inpatient, she was providing care that he reasonably needed, having regard to his condition. I think it unlikely however, that during the whole of that period - particularly when he was "unconscious" within a week or so of admission it was reasonably necessary for her to provide whatever services she did provide. It certainly would have been to the advantage of and reasonably necessary for him when she assisted in giving the prescribed physiotherapy to him and talking with him when he was first able to communicate. The real question, however, is whether his then physical condition "reasonably required" the services that the plaintiff's mother provided for 12 hours per day and which some other person in the commercial field of care provision would have provided at a cost of $10.28 per hour, if the doctors and hospital staff thought such professional care was reasonably needed. No medical evidence was called to show that such "outside care" was "required". I rather suspect that it would be more appropriate to make an allowance by way of general damages to the plaintiff adopting the approach adopted by Taylor J in Wilson v McLeay and Hoare J in O'Connell v Brisbane City Council & Another than to make an assessment applying Griffiths v Kerkemeyer.
[107] I assess as part of general damages, and not upon the Griffiths v Kerkemeyer principle, the sum of $5,000.00 in respect of the attendance and care of his mother upon the plaintiff during the 77 day period that he was in hospital.
[108] With respect to all the other particularised claims for past care there seems no reason to reject them. I therefore assess damages for past care applying Griffiths v Kerkemeyer and Van Gervan v Fenton in the sum of $244,880.88. I assess interest on that sum at 5% P.A for 4.5 years which is $55,098.19.
[109] In lieu of the claim for $9498.72 for care while the plaintiff was in hospital, I assess by way of general damages the sum of $5,000.00. I assess interest on that sum at 10% P.A for 4.5 years which is $2,250.00.
[110] The plaintiff also provided a schedule of calculations based upon the evidence of the plaintiff's mother and the material contained in Susan De Campo's evidence.
Current care rate as per exhibit 35- weekday rate to
Current care rate as per exhibit 35- weekend rate to
Current care rate as per exhibit 35- pub.holiday rate to
Current care rate as per exhibit 35- weekday rate to
Current care rate as per exhibit 35- weekend rate to
Current care rate as per exhibit 35- pub holiday rate to
Total for future care (including agency fees for first period)
[112] Upon the evidence I am unpersuaded that the health of both the father and mother of the plaintiff makes it probable that they will be able to care for him for 25 years.
[113] Mr Goode said that the plaintiff's mother has bad trouble with ulcers. She has a blood clot in her hip on the left-hand side, from which she has suffered for some years. She has been hospitalised for this condition and at one stage almost died. The blood clot remains in her hip and cannot be removed because an operation would put her at significant risk of death. She also hyperventilates and has panic attacks from time to time. Medication she received for that problem caused problems with medication she takes for her ulcers. Mrs Goode is presently either 41 or 42 years of age and I gain the impression listening to both parents that they realise it is unrealistic to assume that they will be able to care for the plaintiff on a one-to-one basis the way they have for the last 5 years for a period of 30 years. There is no evidence as to the age of the plaintiff's father but I infer he is in his 40s - probably around about the age of Mrs Goode. The plaintiff's father says that he also has stomach problems but other than that his health is reasonable. Mr Goode expressed concern about "how much more" Mrs Goode can take. He said she is obviously quite frail, and that she was not even prepared to talk about the future care of the plaintiff until she had to face up to coming to court. Mr Goode said he worries about "her long-term sustainability." He said that he has seen the toll that the care that she has given to the plaintiff over the past 5 years has taken on her health. He said that neither he nor his wife anticipate much improvement in the plaintiff's condition in the future.
[114] It is important in the assessment of the value for the cost of future care to determine, as far as it is possible to do so with any confidence, when gratuitous future care will cease and be replaced by professional care which, in all likelihood, must be procured through a commercial organisation of the sort to which I have already referred, because in Mott v Fire and All Risk Insurance Co Ltd [2000] 2 Qd R 34 the Court of Appeal held that, with respect to an award of damages for future gratuitous care, it was necessary to assess value for future loss by reference to the 3% discount tables. However, where the future care ceases to be gratuitous, it is necessary to use the 5% discount tables pursuant to s 16(1) of the Supreme Court Act 1995.
[115] Accepting that the plaintiff has a present life expectancy of about 60 years, the extraordinary result of this latest requirement in the assessment of Griffiths v Kerkemeyer damages is that an award of damages for gratuitous care will be significantly greater than one for non-gratuitous care over the same period albeit having regard to the principle in Van Gervan v Fenton as applied in Grincelis v House. Indeed, the market cost of procuring those services used to assess the Griffiths v Kerkemeyer claim should be precisely the same. The consequence, which might seem extraordinary to some, is that with respect to precisely the same future period during which Griffiths v Kerkemeyer type services will be provided to an injured plaintiff, the plaintiff will receive a significantly larger award of damages if those services are to be gratuitously provided than will another plaintiff requiring the same services at the same commercial cost who in fact must pay for those services at market rates.
[116] Upon the facts of this case, I am unpersuaded that the plaintiff's mother, having regard to the health problems that she had prior to the plaintiff's injury, which have probably been exacerbated by the strain that she has been under taking care of him for the last 5 years, will remain physically and emotionally capable of continuing to give the plaintiff that sort of care for the next 25 years.
[117] I have no doubt that both the mother and father of the plaintiff will give him the same sort of care that he has received from them and from his siblings and grandmother for as long as they are able to provide it. Upon the evidence, the health of the plaintiff's mother, who seems to provide most of the care, is to use her husband's expression, "fragile." She is now 41 years of age. Doing the best I can in the circumstances, I assess the duration of her capacity and that of the plaintiff's father to continue to provide the sort of gratuitous care which they have provided for five years to be 20 years. By then the plaintiff's mother will be 61 years of age and his father will be roughly that age, or perhaps a little older, and they will have endured the stress of the last five years for another 20 years - albeit hopefully it will diminish to some extent as the plaintiff matures after passing through physical adolescence, and perhaps his mother is able to afford household assistance to lessen the strain of giving almost unremitting care and attention to the plaintiff.
[118] Using the 3% tables, therefore, I assess the present value of the weekly cost of care at $2949.24 for 20 years by multiplying that sum by 788 which produces a total of $2,324,001.10.
[119] I use the same commercial cost with respect to the balance period of 40 years and using the 5% tables multiply that sum by 918 to produce $2,707,402.30. I do not discount that sum for contingencies for the reasons given by Gibbs and Stephen JJ in Sharman v Evans [1977] HCA 8; (1976) 138 CLR 563 at 587.
[120] That sum of course must be deferred for a period of 20 years and again using the appropriate 5% table multiply that sum by **.**3769 which produces the sum of $1,020,419.90.
[121] I therefore assess Griffiths v Kerkemeyer damages in respect of care that the plaintiff will need for the balance of his life which I assume to be 60 years in the sum of $3,344,421.
[122] I am unpersuaded that the plaintiff will give his wheelchair so much use that it will need replacement every 5 years. He certainly needed a wheelchair when he was released from hospital and he has needed one since from time to time. If he must walk for a long distance he may sometimes need a wheelchair. He needed one when he broke his ankle and it is not unlikely that he will again need a wheelchair if he hurts himself in the future, as he is likely to do from time to time. The sort of wheelchair that the plaintiff can use costs about $3,000.00. In respect of his future wheelchair needs, I assess damages in the sum of $10,000.00. He needs medication for the next 60 years at a cost of $20.00 per week, and using the 5% tables, it is agreed between the parties that damages under this head should be assessed at $20,244.00.
[123] An occupational therapist, Ms Kinross, gave evidence that the plaintiff should reside "in a granny flat" style accommodation separate from his parent's house but within the grounds of that house. It is recommended that this "granny flat" have two bedrooms - one for the plaintiff and another for any carer who may wish to stay overnight there. Various other facilities designed to safeguard the plaintiff against injury because of his condition are recommended.
[124] Acting upon that report, Mr Deshon, an architect, has estimated a capital cost of $101,319.00 to build such a separate "granny flat" type of accommodation. He estimates that there are current annual costs for equipment to be installed at $165.00 per annum and an estimated depreciation cost for fittings and equipment of a special design at $428.00 per annum and the house maintenance costs - presumably of the separate granny flat style accommodation (involving external and internal painting, general maintenance, cleaning and replacement of gutters, mowing lawn, garden maintenance plus G.S.T amount to $3,277.85 per annum.
[125] Based upon this material the plaintiff claims the sum of $79,434.00 for the initial cost deferred for 5 years and the sum of $58,115.00 being the capitalised weekly maintenance costs deferred for five years.
[126] The period for the recurring costs selected is 60 years - although only the first five year period has been deferred.
[127] I am unpersuaded on the whole of the evidence that such a claim can be justified. As I understand the evidence from the plaintiff's mother, she would certainly not anticipate him living in a separate granny flat in the foreseeable future. She made it clear that he needs to be close by her and the other members of the family so that even if he is in a separate room he can see his family and talk to them.
[128] In the view, which I take on the evidence, it is unlikely that for the next 20 years the plaintiff will do anything other than live in the house occupied by his mother and father from time to time. Apparently they do not own a house at the moment. Part of the remuneration the plaintiff's father receives is the provision of a house by his employer. The plaintiff and his parents presently reside at Townsville and it is unclear for how long they will continue to reside there. But in any event they do not own a house and they are living in a rented house. Presumably if the plaintiff's father is transferred to manage part of his employer's business in some other town or area a similar provision for accommodation will be made.
[129] It is obviously impracticable to attempt to build a separate granny flat on land not owned by the plaintiff's parents. The evidence generally indicates that provision of live-in 24 hour one-on-one care providers is unlikely to succeed in meeting the plaintiff's needs.
[130] For practical purposes, in my view, if and when the plaintiff's parents acquire a house of their own, they will almost certainly seek to build or purchase one which is low set and which is of a design which will meet, as far as possible, the current needs of the plaintiff and perhaps give him more independence as he grows older within the building to be built or purchased. Some sort of alteration may be necessary to a purchased house. There are many houses available, I believe, which have four or five bedrooms and a living room, family room etc. style of design. Many houses have ensuite bedrooms and some have several bathroom, toilet facilities etc.
[131] Undoubtedly, care would have to be taken in purchasing a house or building a new one to see that, when occupied, it has an appropriate design to accommodate both the plaintiff and his family and perhaps has a bedroom available for a carer from time to time; and to see that all the taps and all the electric switches and points throughout the house are so designed as to lessen danger of injury to the plaintiff by virtue of his condition.
[132] On my appreciation of the evidence it is unlikely that the plaintiff will, over the next 20 years, receive the one-on-one care he needs from a carer provided through commercial agencies who will live in any granny flat style accommodation occupied by the plaintiff without the presence of his parents.
[133] On the other hand, having regard to the very significant stress that the plaintiff's care has occasioned his mother - and for that matter I suspect other members of his immediate family - it may be that the plaintiff's parents, from time to time, will seek the assistance of a trained carer found after a degree of trial and error to relate successfully with the plaintiff. It may be that, if there is a bedroom available to the carer, he or she can live in the house with the plaintiff and his parents for a period to allow the plaintiff to become accustomed to him or her.
[134] If the plaintiff is unfortunate enough to lose his mother and father so that he can no longer enjoy their presence - even if the care they currently provide personally is provided mainly by somebody else, perhaps with their assistance or in their presence - in my view it is unlikely that the granny flat proposed by Ms Kinross and designed by Mr Deshon would facilitate the kind of provision of accommodation and care needed by the plaintiff.
[135] Hopefully over the next 20 years and again hopefully perhaps for some years after that, one or both of the plaintiff's parents will be able to live in the same domestic environment as the plaintiff. For some of that time they will provide the sole gratuitous care that he needs. For the balance with increasing age they will perhaps provide some with the assistance of a paid professional carer.
[136] Keeping all those matters in mind, it is my view that any house that they purchase or build to meet the requirements that the plaintiff's mother indicated would be needed for the sort of gratuitous care she has given to the plaintiff to date would obviously cost more than one not meeting those requirements. Perhaps a more likely solution to the problem will be for the plaintiff's parents to purchase an already built house with the appropriate number of bedrooms, separate family room, living room, ablution areas etc and perhaps modify it to have special fittings of the sort indicated in the updated Schedule 1 to Mr Deshon's report.
[137] On its face the report anticipates the extension of the rented house currently occupied by the plaintiff and his parents by adding to it an area of 75m2 and constructing an extra carport and car tracks.
[138] On the other hand Ms Kinross estimates that it would cost $20,000.00 per annum to purchase "a purpose built accommodation every 15 years over Christopher's lifespan" - i.e about $1.2 M over the next 60 years.
[139] I am unpersuaded that the plaintiff does need the facilities proposed by Ms Kinross at the cost of $20,000.00 per annum or indeed that it is feasible at this time to contemplate constructing a separate granny flat for the use of the plaintiff at the cost estimated by Mr Deshon.
[140] That is not to say that a significant sum may not need to be spent to alter an already built house with the potential to have incorporated in it facilities that are or will be needed by the plaintiff or, should the plaintiff's parents build a new house to so design it as to accommodate the plaintiff's needs - and perhaps the needs of a live-in carer from time to time as their capacity to care for the plaintiff lessens.
[141] There is no evidence from which I might infer that the plaintiff's father may not be provided with a rented house in various parts of Queensland over the next 20 years or so. If that be the position, the probability is that the plaintiff's father's employer will endeavour to obtain a rented house for him and his family which will more or less meet the plaintiff's requirements for care with no need to undertake extensive alterations.
[142] On the evidence, I am unpersuaded that the proposals from Ms Kinross and Mr Deshon, if implemented straight away or even in 5 years time, are likely to meet the joint needs of the plaintiff's family and the plaintiff. I have come to the conclusion, therefore, that the only way to compensate the plaintiff for additional expenditure that will probably be needed to provide him with accommodation in years to come is to make an award of general damages in a reasonably generous sum to cover special expenditures that may be needed over the next 20 years or so if during that period of time his parents buy or have built a house in which they and the plaintiff can live, while they are giving him gratuitous care and while he receives commercially provided care at some stage as they get older. I am unpersuaded that the estimate of costs by either Ms Kinross or Mr Deshon give much assistance in arriving at such a figure. Doing the best I can therefore, I simply assess the sum of $50,000.00 damages to cover the cost of the special sort of accommodation the plaintiff's mother said she thought would most suit him while he lives with his mother, father and other members of his immediate family.
[143] A Trustee of course, will invest most of the damages recovered by the plaintiff. Undoubtedly, that part attributable to the $50,000.00 which I have assessed under this head will earn income upon investment. Should some sum over the next 15 or 20 years be required to purchase a bigger house than would otherwise be purchased or to renovate that house to meet the needs of the plaintiff and should special fittings etc installed in the house for the plaintiff's benefit need maintenance etc obviously the Trustee will have power to make necessary advances. If a larger house needs to be built or purchased, undoubtedly the Trustee would have a discretion to advance a sum towards the purchase of that house and perhaps charge the amount of the advance made for the benefit really only of the plaintiff on that house. Those are matters which it is impossible on the evidence to calculate with any hope of accuracy. It suffices to observe merely that if $50,000.00 were invested at 5% interest it would produce before tax $2,500 per annum.
[144] On the whole of the evidence, should the plaintiff lose his parents, it seems unlikely that a one-on-one live-in carer residing in the same house as the plaintiff would satisfy his needs.
[145] In the event that the plaintiff loses his parents (rather than simply losing their full-time sole care) it may well be that the plaintiff will be forced into a group housing environment. If that happens it seems likely, on the evidence, that his condition will then deteriorate substantially. The cost of group accommodation now, which, at the present stage of the plaintiff's development, would, in my view, be disastrous for him, would be a little under $2,000.00 per week. The weekly rate for future care with a one-on-one professional carer is about $2,900.00 a week. Should the plaintiff eventually be forced into a group housing care position, it may be, on the medical evidence, that he will be much more mature and past his problems with adolescence. The cost of accommodation and care in a group housing environment is about two- thirds of that of a one-on-one care environment which would most nearly replicate that which he receives at present from his parents. Unfortunately for the plaintiff, as a consequence of the use of the 5% discount rate required by s 16(1) of the Supreme Court Act 1995 in assessing damages for future commercial care, it seems likely that with an increase in the rate of inflation the real cost of that care will exhaust the fund to be managed on his behalf before the expiration of his statistical life span in 60 years' time.
[146] Other items of damage that have been agreed are as follows -
(a) An orthopaedic review once per year for 60 years at a cost of $120.00 - $2336.00
(b) 6 visits to a general practitioner per year at $25.00 per visit for 60 years - $2920.00
(c) Future occupational therapy 6 times per year at $100.00 per visit for 60 years - $11,679.00
(d) 4 visits per year for 40 years to a psychologist at $150.00 per visit - $10,585.00
(e) 1 visit per year to a psychiatrist for 40 years at $120.00 per visit - $2,115.00
(f) Future podiatry, 2 visits per year at $45.00 per visit for 60 years - $1,752.00
(g) Future surgery for tendon lengthening - a 50% chance of surgery in 5 years - $1,078.00
(h) Removal of fixation devices in ankle immediately - $2,000.00
(i) Scoloritic surgery 10% chance of an operation within 5 years - $1,078.00
(k) Excision arthroplasty - 10% chance in say 30 years - $92.00
(l) Hip replacement - 10% chance in 30 years - $312.00 - making a total of $4876.00
(m) Future travelling for treatment etc - 20 kilometre trips per year at 50 cents per kilometre for 60 years - $3893.00
(n) Transport from Maryborough to Brisbane by flying doctor 14 October 1996 - $2,220.00
[147] I have therefore assessed the plaintiff's damages as follows -
(iii) Purchase of second vehicle (as agreed) 2,000.00
Total agreed special damages and interest 8187.00
Interest thereon @ 10% per annum for 4.5 years 2,250.00
After apportionment for contributory negligence the damages so far assessed amount to $3,648,136.40.
PAYMENT FOR PAST CARE AND SPECIAL DAMAGES TO NEXT FRIEND
[148] The plaintiff seeks an order (through his next friend) that the second defendant pay to his next friend the sum of damages awarded in respect of past gratuitous care (and interest thereon presumably) and special damages (and interest thereon). That order is sought in paragraph 2(a) of the draft.
[149] Under para 3 of the draft order, it was sought initially "pursuant to sections 12 and 245 of the Guardianship and Administration Act 2000 that the Public Trustee of Queensland be appointed the plaintiff's administrator in respect of the balance award paid to it hereunder."
[150] While, in my view, there is little doubt that there is power to make orders to similar effect pursuant to sections 65(1), 67(2), 80(1)(d) and (e) of the Public Trustee Act 1978 it seems to me the power to make an appointment order under sections 12 and 245 of the Guardianship and Administration Act 2000 is limited to making such orders with respect to a plaintiff who is an adult.
[151] The plaintiff in this case, of course, is not an adult. Indeed he is just 17 years of age and even the Guardianship and Administration Tribunal appointed under section 81 of the Act has no power to make even an advance appointment pursuant to section 13(1) with respect to a child under the age of 17 ½ years.
[152] Upon consideration of similar legislation, it has been held in a number of jurisdictions that under sections similar to those under the Public Trustee Act 1978 to which I have referred, a court may either direct a Trustee exercising similar functions and powers to those under s 80(1), (d) and (e) to pay to a third party out of an award of damages recovered by the plaintiff, which includes a sum assessed on the Griffiths v Kerkemeyer principle, the value of past gratuitous services and reimbursement for the payment of special damages or itself make such an order as part of its judgment. In this respect I refer to Re DJR and the Mental Health Act 1958 [1983] 1 NSWLR 557, Beasley v Marshall (No. 4) (1986) 42 SASR 407, Marinko & Another v Masri [1999] NSWCA 364; (2000) AustTortsR 81-581 at 62,204 per Handley JA.
[153] In Beasley v Marshall (No. 4) (1986) 42 SASR 407 King CJ at 410 observed -
"The trustee or manager of a disabled plaintiff's estate should regard himself, in my opinion, as subject to the same moral obligation as would attach to the plaintiff if he was not under the disability. He should therefore, in the absence of compelling considerations to the contrary, make use of the monies which have been awarded under the relevant head to recompensate those who have rendered gratuitous services to the plaintiff. It is for the manager to decide to whom payment should be made and in what amounts."
[154] That case involved an application by the Public Trustee for approval of payment by that Trustee to a gratuitous carer of the equivalent of the damages assessed in respect of past voluntary care. It did not deal with the power of a court when giving judgment for damages in favour of a plaintiff under a disability to make an order to the same effect pursuant to section 67(2) and section 65 of the Public Trustee Act exercising its discretion in the way contemplated by section 80(1)(d) and (e) of that Act.
[155] The matter was most recently considered by the Full Court of the Supreme Court of Western Australia in Jones & Another v Moylan [No. 2] [2000] WASCA 361; (2000) 23 WAR 65. In that case McKechnie J, who delivered the leading judgment, considered the history of the litigation in that particular case, part of which involved matters not relevant to the issue before me. In the course of his judgment relating to the exercise of a Trustee's discretion to reimburse a person who had provided gratuitous service for a disabled plaintiff, he dealt with both Re DJR and the Mental Health Act 1958 (supra) and Beasley v Marshall (No. 4) (supra). He also referred to W v Q [1992] TASSC 62; [1992] 1 TASR 301, where Cox J at 305 considered and agreed with the view expressed by King CJ in Beasley v Marshall (No. 4) (supra), to which I have referred. His Honour then dealt with the quantum of the payment, in the circumstances of that case, which should be made to the gratuitous care-giver out of the damages received by the injured plaintiff. That was an appeal against the refusal of an assessing judge in the exercise of his discretion to make any payment to the care-giver. He referred to the "exquisite dilemma" faced by the judge in making this decision, because the award of damages to the plaintiff in that case, by reason of the potential inadequacy of the damages assessed for future care (by reason of the statutorily required discounting at a rate of 6%) in fact led to the conclusion that it was unlikely that there would be sufficient damages assessed under all heads to meet the future care of the disabled plaintiff during the whole of the period that he would require it.
"After taking into account all matters relevant, the discretion is to be exercised solely for the welfare, benefit and advancement of the disabled person.
It is not an exercise in choosing between two unpalatable alternatives: denial of the moral obligation on the one hand, or a serious diminution of the capital of the trust fund on the other hand.
It is an exercise in discretion designed to make the right decision for the benefit of the disabled person in all the circumstances. Powell J was right to stress that each case would have to be considered on its merits."
"Evidence from the trustee as to the costs of care, having regard to life expectancy, the performance of the fund, and the effect of a diminution of the fund on possible future income, will always be necessary to the proper exercise of the discretion. Without such evidence the Court will be unable to evaluate all the relevant circumstances to decide whether a payment should be made."
[157] Commenting upon the refusal of the judge to direct any payment from the judgment in respect of gratuitous pre-trial care, His Honour observed at 88-
"Necessarily, his Honour must have concluded that in the particular circumstances, having regard to the amount claimed it was not `reasonably possible'." [to make the payment for past gratuitous services.]
"This wide view, as a matter of public interest, is a relevant consideration and ought to be accorded due weight. It will never be a decisive consideration by itself but should be added to the scales in favour of the making of a payment.
Another factor, which appears to have been overlooked by Sadleir DCJ, is that it may be in the interests of both the plaintiff and the public that the services continue to be provided to the plaintiff and that one measure of maintaining this public interest will be to provide some recompense to the provider of such services, notwithstanding that the trust fund would be depleted."
"Payment of an amount to satisfy a moral obligation will often benefit a plaintiff. Having regard to the findings of Sadleir DCJ as to the relationship between the plaintiff and Mr Peter Jones, I consider payment would benefit the plaintiff. In my opinion Sadleir DCJ erred in the exercise of his discretion in failing to give sufficient weight to the factors I have outlined. Had he given them sufficient weight, then he would have concluded that some payment to offset the gratuitous services provided to the plaintiff by Mr Peter Jones would have been to the plaintiff's overall benefit notwithstanding the overall diminution of the trust fund. I am mindful of the exquisite dilemma faced by Sadleir DCJ and indeed by the court. I am also conscious that this is an appeal against the exercise of a judicial discretion. Appellate courts do not generally intervene in the exercise of judicial discretion. Nevertheless, in the present case I consider that a substantial amount ought to have been ordered because I am quite persuaded that it would be for the benefit of the plaintiff to do so.".
[158] As a matter of interest, analysis of the amount determined by McKechnie J at 89 shows that there had been an assessment of $250,000 for past gratuitous care together with $50,000 for interest on that sum, leading to a total award for past care and interest of $300,000. But that was a case which had settled, and that sum was reduced pro rata for contribution which would lead to the recovery of a sum of $275,000.
[159] On the facts of that case, by the time the matter came before the Full Court, $350,000 of the trust fund had already been spent on the purchase of a suitable house for the plaintiff and the working capital of the fund had been diminished to that extent. His Honour concluded, however, at 90 -
"In this case the indicative amount of $275,000 constitutes a reasonable balance between the various factors necessary to be given weight in making a decision for the benefit of the plaintiff."
[160] He then concluded that in the circumstances of that case it would be "appropriate to make allowance for a sum analogous to the payment of interest". And he added an extra $25,000 "representing an amount analogous to an interest payment". All told then it was ordered that the Trustee pay to the next friend the sum of $300,000 "in recognition of a moral claim for the past provision of gratuitous services" to his disabled son.
[161] Kennedy J at 75 drew attention to the "major conflict of interest" with respect to the merits of the application for an order that part of the plaintiff's judgment be paid out to his father in respect of past gratuitous care when counsel for the plaintiff was instructed by the plaintiff's father as his next friend. The hearing was adjourned to permit a substitution of next friend. The father on the adjourned hearing was not represented at all. But of course the disabled plaintiff was represented by a next friend other than his father, in respect of whom the claim for past gratuitous services was made.
[162] In this case, although counsel for the plaintiff was, of course, instructed by the plaintiff's mother as his next friend, he was instructed to represent the plaintiff and not the personal interest of his mother as a claimant for recompense for gratuitous services rendered prior to trial.
[163] To avoid the incurring of costs on further applications to resolve any question of conflict of interest, as was done in Jones v Moylan [No 2], to which I have referred, the plaintiff has called evidence from Mr Gallagher on this point. I am able to infer from that evidence the effect of a diminution of the fund on possible future income. That effect on balance makes it desirable in the plaintiff's interest that moneys expended on the items of special damage and the value of assessed past gratuitous care be paid to his next friend.
[164] Part of the assessed damages in respect of gratuitous services which (with the assistance of other members of her family) she has rendered on the Griffiths v Kerkemeyer and Wilson v McLeay principles, and in respect of special damages which, with interest, have been assessed at $308,116.07. Having regard to the contribution of the plaintiff to his injury that sum must be reduced by at least 20% to the sum of $246,492.85. Ultimately, the sum which will be paid to Tracey Goode must depend upon the size of the fund and its likely capacity to provide future support for the plaintiff and the other considerations to which I have referred.
[165] I am satisfied, upon the evidence of Mr Gallagher, that, on balance, it will be for the benefit of the plaintiff to adopt the approach of McKechnie J in Jones & anor v Moylan (No. 2) (supra) and order payment of the sum of $246,492.85 to Tracey Anne Goode out of the judgment given for the plaintiff.
[166] Having regard to the interest payable on common fund investments with the Public Trustee - which is currently 2.8% and over the last five years has fallen from 8.25% to as low as 2.25% on 1 July 1999, it is fair to say that the rate payable has fallen rapidly since 1995 and has not exceeded 3% per annum since 1998.
[167] Keeping in mind the discount rate required to be used pursuant to s 16 of the Supreme Court Act with respect to the cost of future commercially provided services - ie 5% - the plaintiff led evidence as to the interest currently payable on funds held by Perpetual Trustees Australia Limited. After all establishment and managing expenses etc have been paid that interest is about 5.925% on the funds held. That return is nearly double the return that has been paid on the common fund managed by the Public Trustee over the last 3 years.
[168] I have had regard to a letter from the Official solicitor to the solicitors for the plaintiff dated 29 June 2001 (Part of Ex "O") in which it is stated that -
"based on current long-term forecasts of the major asset classes, a conservative estimate return is 5.2% (being 3.53% income and 1.67% capital growth). This estimate assumes a conservative balanced investment policy - which may change in accordance with a particular strategy arising out of the financial planning process".
[169] Based upon this forecast (which in my view is rather hopeful even if conservative having regard to the actual returns recorded over the last three years) an estimate is given as to the administration fees which would be payable over the next 60 years - which totals $188,922.00.
[170] On the other hand Perpetual Trustees, based upon past returns, expects to produce a current nett return after fees (at least in the second year of investment of funds) at a rate of 5.925%.
[171] More importantly however, the investment plan to be implemented by Perpetual Trustees is designed to produce annually, for the next 60 years, a payment from income/capital of $220,000 to $260,000 (approx) which is more than double that forecast for the Public Trustee fund which is designed to produce $111,000 to $117,000 (approx) per annum.
[172] However, the present value of all management fees for Perpetual Trustees for 60 years will be $285,596.13 - ie approximately $80,000.00 more than the management fees over that period which the Public Trustee would charge.
[173] Having regard to the projected financial needs of the plaintiff when he will require the provision of commercial care, which of course could happen at any time depending upon the capacity of his parents and family to give him the current gratuitous support, the current cost of satisfying those needs will be in the order of $150,000 per year.
[174] All things going well, the investment service offered by Perpetual Trustee obviously will provide him with annual payments from income/capital to expire at the end of a 60 year period which should be sufficient to satisfy his need for the provision of commercial care, should that become necessary within a relatively short period of time. There will even be a safety margin to accommodate an increase in the cost of such care over the next 60 years - although not an increase at the rate of increase over the last five years, which seems much greater than the rate of inflation over that period. It will also permit payment of income tax and capital gains tax, which undoubtedly will reduce the annual amount available for the plaintiff's use but which, for understandable reasons, Mr Gallagher did not attempt to calculate over the 60 year period.
[175] On the other hand, the annual return from the fund managed as proposed by the Public Trustee will be significantly less than the sum required to meet the costs of commercial care. It will only produce, as I have indicated, from income/capital a sum of less than $117,000 per year during the 60 year period. That sum also would be reduced by income tax and capital gains tax.
[176] In the circumstances, in my view, it is to the interests of the plaintiff that the balance of his judgment, after paying part of it to his next friend for past care and the payment of special damages, be invested with Perpetual Trustees an authorised Trustee company which is listed on the Australian Stock Exchange and manages over $80 billion in funds for persons needing services and management skills of the sort needed by the plaintiff.
[177] I take into account the additional management fees payable to Perpetual Trustees to manage approximately $3.4 million for the next 60 years on behalf of the plaintiff. The precise size of the fund to be managed will be $3,401,643.60 calculated as follows: -
Judgment sum before Perpetual Trustee charges $3,648,136.48
less contribution (20%) paid to next friend $246,492.85
[178] It is unnecessary for me to determine the interesting question whether the defendant should bear the increased management fees that will be payable by the plaintiff to Perpetual Trustees, which are approximately $80,000 more than the fees that would be charged by the Public Trustee.
[179] It has been agreed between the plaintiff and the second defendant that the plaintiff will not seek by way of damages for management fees a sum greater than that which would be payable to the Public Trustee. The Public Trustee, in its letter of 29 June 2001, estimates the present value of administrative charges with respect to the fund to be managed by it for 60 years to be $188,922.00. Perhaps, if the rate of return on the managed fund was as high as that expected of the Perpetual Trustee fund, it would be higher because it is calculated on income received rather than the quantum of capital managed. It is unnecessary, however, for me to do other than fix the sum which would be payable to the Official Trustee as damages payable to the plaintiff for management costs which is the sum of $188,922.00.
[180] I therefore assess damages in the sum of $3,648,136.48 plus management fees in the sum of $188,922.00 in the sum of $3,837,058.48.
[181] Of this sum I order that $246,492.85 be paid directly to the next friend of the plaintiff, Tracey Anne Goode, as reimbursement for special damages paid on behalf of the plaintiff and for past gratuitous care rendered by her to the plaintiff with the assistance of her family.
[182] I appoint Perpetual Trustees Australia Limited (ACN 000 431 827) ("PTA") to be Trustee to manage the monies to which the plaintiff is entitled under this judgment.
[183] I will direct that the sum of $3,590,565.63 be paid by the defendant to Perpetual Trustees Australia Limited (ACN 000 431 827), to be held upon trust for the plaintiff and to be invested on his behalf in a managed fund which, upon the assumptions made in preparing the schedule to Mr Gallagher's letter of 29 June 2001, should produce an annual return to the plaintiff of $140,000 average, less tax, for a period of 60 years.
[184] The after-tax benefit to the plaintiff will vary each year. During earlier years when little resort is had to capital income tax might take 40% or 50% of the "annual net" available amount produced by the fund. During the last few years relatively little income tax may be payable from the fund.
[185] Perpetual Trustees Australia Limited, in the administration of the fund for the benefit of the plaintiff, is to have all powers of maintenance and advancement and all powers to make discretionary advances on behalf of the plaintiff to his next friend and other members of his family and other persons who provide gratuitous care for him that the plaintiff would have personally if he were of full age and able to manage his own affairs, in particular, all the powers conferred upon the Public Trustee by s 80 of the Public Trustee Act 1978.
[186] There be judgment for the plaintiff against the second defendant in the sum of $3,837,058.48.
[187] The second defendant pay the judgment sum of $3,837,058.48 as follows -
(a) The sum of $246,492.85 to the next friend of the plaintiff in respect of special damages and past care;
(b) Such sums in payment of statutory refunds and charges which the plaintiff and/or the second defendant is obliged to pay from the judgment sum;
(c) The balance to Perpetual Trustees Australia Limited A C N: 000 431 827. The receipt of each payee for the payments made pursuant to this clause shall be a sufficient discharge for the second defendant
* Shall hold the said sum for the plaintiff pursuant to the Public Trustee Act 1978
* Shall invest the said sum as permitted by the said Act;
* Shall apply the said sum and any income therefrom for the maintenance and advancement or otherwise for the benefit of the plaintiff;
* Shall be and remain Trustee for the plaintiff until further order of this court or the Guardianship and Administration Tribunal under sections 12 and 245 of the Guardianship and Administration Act 2000.
[189] The second defendant pay to the solicitors for the plaintiff and plaintiff's standard costs of and incidental to the action (including reserve costs, if any) to be assessed
[190] Perpetual Trustees Australia Limited pay out of the said sum paid to it the difference between the amount recovered from the second defendant as standard costs and the plaintiff's solicitors and own client costs (indemnity costs) to be assessed.
[191] The parties hereto and Perpetual Trustees Australia Limited have liberty to apply in respect of this order.
# Goode
Thompson & Anor \[2001\] QSC 287
(1986) 42 SASR 407
(1977) 139 CLR 161
(1998) 84 FCR 190
(2000) 201 CLR 321
(1997) 25 MVR 97
(2000) 23 WAR 65
(1996) 187 CLR 354
(1993) 31 NSWLR 162
(1990) 169 CLR 245
(1956) 96 CLR 10
(1999) 29 MVR 430
(1976) 138 CLR 563
(1952) 87 CLR 619
(1992) 175 CLR 327
(1961) 106 CLR 523