Hedge & Ors v Trenerry [1997] QCA 406

In a very detailed and careful judgment, His Honour found that Mr Hedge was the driver. He based this finding on admissions he was satisfied Mr Hedge made to Mrs Dale, once while she was in hospital and twice while they were living together after her discharge from hospital. She left him in about September 1984. His Honour also relied on a number of other circumstances which tended to prove that Mr Hedge was driving the utility.

On appeal, it was argued that the evidence from Mrs Dale that Mr Hedge admitted to her that he was the driver was too unreliable to be acted upon. This contention is based on the nature of the injuries she received, so brief reference should be made to these and to her initial period in hospital.

She was taken from the accident scene to the Dalby Hospital. She was not admitted but was taken to the Toowoomba General Hospital, and then referred on 26 October 1983 to the Princess Alexandra Hospital. His Honour found that she was unconscious from the time of the collision until towards mid January 1983. He also found that it was not possible to state the commencement time of the period of pre-traumatic amnesia.

The injuries consisted of a depressed right fronto-parietal fracture of the skull, a fracture of the first sacral segment, contusions, and intra-abdominal haemorrhage. On admission to the Princess Alexandra Hospital, a CT Scan showed generalised cerebral oedema, and contusions to the right frontal and right occipital regions of the brain and in the region of the left internal capsule. By early February 1983, Mrs Dale was moving her limbs on request and following a moving object with her eyes. She was transferred to a rehabilitation ward on 15 March 1983. Rehabilitation continued until 13 July 1983 when she was discharged at her own insistence.

The finding in respect of the admissions Mr Hedge made was expressed in these terms:

"After seeing and hearing the defendant and the plaintiff, I have concluded that the plaintiff's evidence as to admissions made by the first defendant to her after her return to Dalby in mid-July 1983 concerning his being the driver of the utility have the ring of truth and were made and I find that on probably three occasions the first defendant admitted to the plaintiff that he was the driver of the utility on the night of 25 October 1982 and asked her not to tell the police as he could go to gaol. I find two of the admissions were made when the plaintiff and the defendant resided together between mid-July 1983 and September 1984. I find that the plaintiff is mistaken in her recall of the admissions she said were made while she was an in-patient and shortly after she first woke-up. I find it more likely than not that these admissions were made to the plaintiff before she left hospital in mid-July 1983 and not during January 1983.

I should add that although I am satisfied the plaintiff does have short term memory problems, these admissions made by the first defendant to her are fixed in her long term memory. The admissions were made after the post accident amnesia had ended.

I am satisfied that the admissions made by the first defendant to the plaintiff as to his being the driver of the utility at the time of the collision were true and I make this latter finding because, after listening to and observing the first defendant give his evidence, I have concluded that despite his having been knocked out in the accident and having suffered some head injury he has a better memory of the events leading up to the collision than he was prepared to admit in the witness-box. I think it more likely than not that the first defendant has deliberately attempted to repress those memories out of a sense of guilt or responsibility for the grievous injuries suffered by the plaintiff who was at the time and for the best part of two years thereafter his common law wife."

Mr Hanson Q.C., who appeared for Suncorp, recognised that, on appeal, it is very difficult to interfere with these findings. They are based, in part, upon observations of the two witnesses and, in part, upon the medical evidence about how memory is laid down. The latter evidence is far from precise and the finding that the admissions are fixed in Mrs Dale's long term memory is not against the weight of evidence. There is no basis for saying that the experienced trial Judge has abused the advantage he had of seeing and hearing the witnesses. Rather it appears that he has conscientiously dealt with the issues raised between the parties. His findings in this regard should not be dismissed.

In any case, His Honour found that there were other facts from which it could be inferred that Mr Hedge was the driver. These were:

"In summary, the major pieces of evidence which have influenced me in reaching this conclusion are:

1. The first defendant's broken teeth and broken maxilla and lack of any facial injuries in the plaintiff.

2. The distorted steering-wheel and the teeth mark indentations in the U-part of the distorted wheel.

3. The first defendant's quite extensive abrasions on his right chest and absence of similar injuries in the plaintiff. These injuries are consistent with the first defendant having been restrained by a seat belt and the first defendant's chest having struck the steering-wheel but not sufficiently hard to cause a stove-in-chest.

4. The first defendant's closed comminuted fracture of the mid third of his right femur which I consider was, on the balance of probabilities, caused by the brake pedal striking the back of his right thigh.

5. Absence of any other possible cause for the first defendant's fractured right femur.

6. The absence of any possible cause for the plaintiff suffering a fractured sacrum - a rare injury and one which required considerable force applied directly to the sacrum - other than the plaintiff having been ejected from the utility immediately after the collision with the tree and landing with considerable force on the ground outside the passenger door which ground had gravel and grass (as I have already indicated). I have rejected any suggestion that the brake pedal fractured the sacrum when the pedal moved to its final position.

7. The fishtailing marks made by the utility as it travelled along Blaxland South Road after leaving Blumke's which marks were made under control and that control required some degree of strength as the utility with its 8 cylinder engine had no power steering. The first defendant was as I have found much stronger than the plaintiff and in my view it was much more likely than not that during this fishtailing manoeuvre the utility was driven by the first defendant rather than a small woman. I am firmly of the view that this plaintiff who needed a cushion when driving the utility was not strong enough to drive this utility for about 900 metres along Blaxland South Road performing controlled fishtailing manoeuvres as the utility travelled forward."

Other matters advanced on behalf of the plaintiff such as the location of thongs and a purse in the vehicle after the incident were rejected as speculative.

It is clear from this passage that careful attention has been given to the evidence. Those facts which were not properly proved were rejected. Those properly proved on the balance of probabilities were then assembled and the inference drawn that Mr Hedge was the driver. There is no basis for interfering with this finding on appeal.

The second matter raised by Suncorp was the failure to find that the plaintiff was guilty of contributory negligence because she travelled with Mr Hedge when his capacity to drive was adversely affected by liquor. This point turns on an entry made in the Toowoomba General Hospital records when Mr Hedge was admitted on the morning of 26 October 1982. This evidence came from Dr Monsour who made the note under the printed words "personal history" - "Alcohol - ?? social (although now ? drunk)". In evidence the doctor agreed that this meant "query drunk". This note was made at least 2 hours after the incident. There is no basis on appeal for re-interpreting Dr Monsour's evidence and for finding that Mr Hedge's capacity to drive was so observably impaired by the consumption of liquor that Mrs Dale failed to take reasonable care for her own safety when she travelled in the utility that he drove.

The remaining issue concerns the quantum of damages. Here it is easy enough to agree with Mr Hanson's initial submission:

"The first impression surely is somewhat excessive. A girl seriously damaged, obviously, permanently damaged, but nonetheless since the accident has married and had a husband and two children and yet ends up with over $2 million. So at first blush the award looks excessive."

However, on an appeal, the matter must go beyond "first blush".

It is difficult to make an adequate summary of the impact the injuries which Mrs Dale sustained have had on her, but the following passage from the judgment is a suitable beginning:-

"Dr John M Sutherland examined the plaintiff on 24 November 1987 and gave a report (Exhibit 59). He has since died. But nevertheless I place considerable weight on his opinion. I accept his view that in late 1987 i.e. some 5 years after the accident, the plaintiff was left with a persistent physical and mental disability, that the physical disability comprised a gross speech defect, some dyspraxia (clumsiness) of hand movements, impaired balance, difficulty in swallowing and a rightsided weakness affecting face, arm and leg due to pyramidal (motor tract) damage to the left hemisphere of the brain and that the mental disability was reflected in her loss of drive and initiative, lack of inhibition and impaired cognitive function and impaired memory. He also noted some apparent 'blunting of insight'. He defined insight as meaning 'self-understanding; an awareness of desires, feelings and motivations'. He found this blunting of insight was due to frontal temporal lobe damage suffered by the plaintiff in the accident. Overall, Dr Sutherland opined in 1987 the plaintiff had 'severe disability (category 3, sub-category 4, in the Glascow outcome scale . . . By this should be understood that (plaintiff) is dependant in that she requires the assistance of others in some part of every 24 hours particularly, in the sense of decision making, looking after herself generally and to some extent to making herself understood by means of the spoken word.'

I accept these opinions of Dr Sutherland as well as his then prognosis when he said:

'In severe head injuries such as this, in the medium term the injury may be compensated for by the brain's reserve capacity. In the long term, 10 years and over progressive changes are likely to occur and brain injury increases the risk of dementia occurring as a result of encroachment on the neuronal reserve incurred by ageing and other factors. A conservative estimate for young adults affected by a severe head injury would be that the onset of senile dementia may be accelerated by 10-15 years. Unfortunately, it is not possible to predict in such cases whether or not senile dementia will occur other than to indicate that by 60 years of age 10 per cent of the population will be afflicted, rising to 22 per cent by 80 years of age. Thus after a severe injury 10 per cent of individuals will show evidence of dementia by 45-50 years of age and 22 per cent by 65-70 years of age.'

I am satisfied also that the plaintiff has a 20 per cent risk of developing post traumatic epilepsy."

"Dr Cramond who had been the plaintiff's family doctor in Dalby since the plaintiff's birth - in fact he attended her mother's confinement with the plaintiff - in 1987 wrote two reports on the plaintiff and has given oral evidence. In May 1982 he saw the plaintiff as his patient. He did not see her again until after the accident. I am satisfied he is well placed to comment on the plaintiff's pre and post accident conditions. Having heard him I am satisfied that before the accident the plaintiff was a normal teenager. Dr Cramond says that post accident he found the plaintiff to be unpredictable, irresponsible, unreliable, impulsive and unable to take advice and, as he said, these were all symptoms of the plaintiff's general condition resulting from the 1982 accident. He noted in his report (Exhibit 20) that the plaintiff, at the time she was discharged in July 1983 was left with a neurogenic bladder, anarthria, ataxia and residual organic brain damage. Dr Cramond noted that Princess Alexandra Hospital had noted that she was 'becoming increasingly difficult and she was becoming increasingly uncooperative with therapists'.

Dr Cramond's two reports (Exhibits 20 and 22) show that he has no doubt that the plaintiff has been and is severely impaired mentally by the effects of the accident and that although there had been considerable improvement with time she was (in July 1987) still certainly mentally and physically impaired. In his view she did not then recognise the full extent and seriousness of her physical and mental impairment and she had only partial insight into such disabilities. In this view Dr Cramond is not alone as other doctors who had examined her e.g. Dr. J.G. Toakley held the same opinion.

It has been mentioned that Mrs Dale discharged herself from the Princess Alexandra Hospital at her own insistence. In addition to the words of Dr Cramond quoted above, it may be noted that in his report he says that while in hospital "she developed severe persistent chest infection and legionnaire's disease". The fact that she discharged herself does not mean that she was able to take control of her life. Rather it illustrates, as Dr Cramond said, that she was "unpredictable, irresponsible, unreliable, impulsive and unable to take advice." It is this disordered mental state which has led to the award which at first blush seems excessive.

The relationship between Mrs Dale and Mr Hedge was resumed for a time, but she left him in about September 1984. There was then a period until 1989 when she lived with her parents and was largely left to her own devices for some hours each day. During this period she often went out alone at night-time, particularly to attend night clubs and discos. Her behaviour there was "quite out of character with her pre-accident behaviour". She would become drunk, abusive, destructive and promiscuous, in a word "disinhibited."

Much has changed since she married Mr Dale. He lost his right arm in a motor cycle accident in 1983, and was a heavy drinker before he met the plaintiff. He described himself and his wife as "born again Christians". Until 1990, he worked a couple of days a week in a caryard. After Sonya was born on 11 December 1989, he undertook all the domestic responsibilities and continues to do so.

After considering Mr Dale's evidence and the evidence of Miss Stephenson and Ms Coles, His Honour said:

"I am satisfied after having heard Miss Stephenson that as a result of the accident injuries in practical terms this plaintiff needs somebody present with her for 24 hours a day. I am satisfied that she should not be left alone with the children because apart from the children being at risk she herself is at risk, if left alone, of wandering and as Miss Stephenson said 'to go on and find some person to interact with who may take advantage of her'.

I am also satisfied that there is a slight risk at anytime the plaintiff is not being cared for, that she could fall or she might be unsafe with electricity and, as I have said, she will more likely than not be at risk sexually if there were persons present who might take advantage of her.

I prefer to act on the evidence of both Miss Stephenson and Ms Coles. I am satisfied this plaintiff needs and has for many years needed assistance in personal activities of daily living e.g. supervision of her hygiene and attention to hygiene and the like, performance of virtually all domestic chores, household organization and supervision; care and parental guidance of the children and organization of her life."

It was accepted that Mrs Dale is unemployable. The summary of the award was:

"In summary then I assess damages so far as follows:-

1. Pain suffering and loss of amenities - 150,000-00

3. Impairment of earning capacity - past 70,000-00

5. Impairment of earning capacity - future - 280,000-00

12. Out of pocket expenses (non interest bearing) 41,460-00

13. Out of pocket expenses (interest bearing) 10,535-00

The additional amount which brought the judgment to $2,245,343.55 comprised fees payable to the Public Trustee in respect of the management of the award. Clearly, Mrs Dale does not have the capacity to manage such a sum.

The items which were particularly attacked were pain, suffering and loss of amenities, loss of earning capacity, past and future, superannuation loss, past care and assistance, future care and assistance and accommodation requirements.

The amount of $150,000 for pain suffering and loss of amenities is certainly high, but the consequences of Mrs Dale's injuries have been very serious. To return to Dr Cramond's summary, the neurogenic bowel has continued to be a problem and, on evidence His Honour accepted, causes chronic constipation and bladder problems. It also contributed significantly to a vaginal prolapse. The injury to the sacral area has left her with very regular onset of pain in the base of her spine. She has very real difficulty in making herself understood and this causes her frustration and on occasions depression. She has problems with her gait and lack of co-ordination. The general disorder in her life has been referred to. However, in assessing damages, some recognition must be made of Mrs Dale's lack of insight, although she is not completely unaware of her injuries or their consequences. This was recognised by the trial Judge. In all the circumstances it cannot be said that this part of the award is excessive.

The allowance for past economic loss is based on the premises that, from October 1982 until 30 June 1989, Mrs Dale would have worked as a shop assistant, that she would have married at about that time, had two children and returned full time to the work force in 1995. On the basis of full time employment over those periods, the loss would be $73,586.18, which was discounted to $70,000.

Mrs Dale was in fact married in 1989 and had two children so that there is an attractiveness about the approach that was taken. However, she seems to have been infatuated with Mr Hedge prior to October 1989, and pursued a relationship with him against the wishes of her parents. He had two convictions for driving whilst under the influence of liquor, and it is over generous to assume that from 1982 to 1989 Mrs Dale would have been so in control of her life that she would have been constantly employed. An amount of $50,000 for the pre-trial period would be more realistic.

In assessing interest payable on this amount no account was taken by the trial Judge of the various payments received from the Department of Social Security. These amounts should be taken into account: Shield Contractors Pty Ltd v. John Nicol McGill Appeal No. 4832 of 1996. The two summaries of the plaintiff's claim (Exs. 76 and 77) include no claim for interest on past economic loss, claimed at $100,000, so that it may be assumed that the payments received exceeded $50,000. In those circumstances, no interest should be allowed.

The assessment of future economic loss was made as follows:

"As for the future, I propose to assess on the basis of total loss of earning capacity from the present until the plaintiff attains the age of 60 years. I think it more likely than not that had she not been injured this plaintiff would have worked until aged 65 years. The cut off at 60 years is intended to reflect some discounting for adverse contingencies such as early death, sickness, accident, unemployment and industrial disputes.

This particular plaintiff's parents have given her a good example of the work ethic. I consider that, had she not been injured, the plaintiff would have followed their example. My earlier comments concerning two income families also apply.

According to schedule 2.1 of Exhibit 9, a shop assistant's net weekly earnings for the year ended 30 June 1995 are $337.46. According to schedule 2.2 of Exhibit 9 a shop assistant's projected net weekly earnings for the year ended 30 June 1996 are $340.82. The present value of a weekly loss of $337 for 29 years on the 5 per cent tables is $272, 970. For 30 years the present value of such a loss is $277,014.

I note that in Mr O'Keeffe's first of the above three mentioned scenarios and this is on the basis that the plaintiff had been promoted to manageress at age 25, the net weekly earnings of such a manageress for the year ended 30 June 1995 would have been $359.24. The present value of such a weekly loss for 29 years on the 5 per cent tables is $290,984 and the same loss for 30 years on the same tables has a present value of $295,295.

In my view, assuming this plaintiff had returned to the workforce in about mid-1995 and remained in it at the age of 30 then, in the next thirty years, given her pre-accident personality and disposition and her pre-accident intelligence as I have found them to be, I think it highly likely that before she reached retirement this plaintiff probably would have become a manageress. I propose to allow $280,000 for future impairment of earning capacity. In arriving at this figure I have discounted for the adverse contingencies I mentioned earlier."

That is a very generous approach which takes a future working life of 34 years and reduces it by 5 years to allow for the adverse contingencies, a reduction less than 15%. It then assumes virtually continuous employment as a manageress. This cannot be justified on the basis of pre-accident performance. Also it does not take account of the impact on rural towns of the changing patterns of the rural industries. It also assumes an even tenor of life which experience suggests is not often found. A more realistic figure would be $150,000.

The attack made on the allowance of $75,000 for lost employer and Government contributions to superannuation is based on two propositions, namely that the amount of $50,000 for employer contributions assumes continuous employment and the amount of $25,000 assumes a Government commitment where none has been demonstrated. It has become a common practice to allow 6% of the sum assessed for future economic loss as an appropriate sum for the future. This is only a rough guide, but as that amount would be only $9,000, it does suggest there has been a substantial over provision. The past component would not be considerable because that assessment assumed Mrs Dale would not have worked during most of the time since 1 July 1992. A more appropriate allowance would be $10,000.

The most difficult part of the assessment is in respect of past care and assistance. Mrs Dale still has the physical capacity to do many domestic tasks but her disorganised mental state means she does not do them. This has led many of the specialists who gave evidence to say that she needs 24 hours a day supervision. It is difficult to see how this can be achieved outside of secure institution, but even there disinhibited sexual behaviour may occur, which is one of the concerns the specialists have.

The way this difficult issue was approached by the trial Judge was to allow for a full time carer at a daily rate from the time Mr Dale took on full time care. Up to that time he allowed four hours a day at commercial rates, except during the period Mrs Dale was in the Princess Alexandra Hospital. It is correct that until Sonya was born Mr Dale did not offer full time care. However that does not mean that prior to that time four hours a day was not reasonable. The four hour a day finding was criticised, but when the evidence particularly of Mrs Trenerry and also Mrs Hedge is considered it is a reasonable estimate of the amount of care given each day. Certainly neither woman offered 24 hour a day supervision but they did provide daily care which would reasonably be estimated at 4 hours. The hourly and daily rates are justified on the evidence.

The only part of the assessment of past care and assistance which is debatable is the allowance of $10 per hour in respect of time spent by Mrs Dale's parents and others during her time in hospital in 1982 and 1983. It is not clear where this figure came from. In the last line of p.1345 the rate is said to be $10 per week, but the calculation shows that $10 per hour was allowed. The award for this period was $8,485 out of a total award for past care and assistance of $289,925. As this particular issue was not addressed in argument, it does not seem appropriate to make a minor adjustment to this sum.

For the future, $820,000 was allowed for care and assistance. This was calculated on the basis of a cost of $120 per day - $100 for the carers and $20 for administrative costs. The latter amount was criticised so that it is important to understand the reasons for it:

"The evidence of Mrs Omiros is that the market cost of the constant care and attention needed by the plaintiff (and based on her firm Domicare providing those services) is $120 per day. Of this $100 is paid to the carers and $20 for administrative costs of the provider.

Mrs Omiros at present provides service for a boy in Dalby, but not on a 24 hour contract. After hearing Mrs Omiros I am satisfied that it is possible for continuous care to be provided quite easily by three carers in each 24 hours. I also accept her evidence that it is possible to obtain live-in carers as well as 24 hour carers and, that keeping 24 hour carers and live-in carers on a permanent or long term basis can prove difficult. I accept her evidence also that if, for example, the plaintiff were to find a suitable live-in carer, it may well transpire that that live-in carer could continue her care commitment for the plaintiff for a number of years.

As I have earlier said, I reject the defendant by election's contention that the cost of accommodation and other facilities at Leighton Lodge is the yardstick by which the damages for this plaintiff's needs should be assessed.

I propose to act on the evidence on Mrs Omiros and I do not overlook the contents of her reports (Exhibits 41, 42, 43)."

Mr Hanson Q.C. did not attack the rejection of the Leighton Lodge concept so some basis for rejecting the evidence of Mrs Omiros has to be found. In FAI General Insurance Company Limited v. Green Appeal No. 195 of 1995, this Court considered a case where the injured plaintiff lived in Childers. It noted that there was no evidence of the market price in and around Childers, and consequently disallowed the administration component in the daily rate. That is not the case here, as the quoted passage shows. In the pre-trial assessment, His Honour did not allow the administration component because Mr Dale was providing the services. It seems reasonable to approach the future on the expectation that for some of the time that will continue. However, it cannot be assumed that it will continue indefinitely, and, in any case, the law is clear that the commercial rate is the appropriate one: Van Gervan v. Fenton [1992] HCA 54; (1992) 175 C.L.R. 327, Kars v. Kars [1996] HCA 37; (1996) 141 A.L.R. 37.

"At $120 per day ($840 per week) the present value of such a weekly outlay for the next 50 years is, on the 5 per cent tables, $819,840. If I assume the life expectancy were 45 years than the present value of such weekly outlay on the same tables is $798,000. If I assume the plaintiff will live for another 55 years the present value of that weekly outlay on the 5 per cent tables is $836,640.

The life expectancy of the plaintiff as agreed i.e. 50 years, is a statistical average and it is trite to say there is a possibility that the plaintiff will live beyond 81 years and, a possibility that she will die before reaching that age. There is no doubt that her need for constant supervision and attention will continue until her death. I do not overlook the quite slight possibility that by age 45 or 50 and the slight possibility that by age 65-70 the plaintiff may have suffered a mental decline because of the brain injury, such that she will require to be confined in some type of institution and in which event she will still be in need of constant supervision and will need constant care and attention."

If no administration fee is allowed for the first 15 years of a 50 year period, the calculation produces the sum of $742,140 and for 20 years, $726,600. It is reasonable to assume that Mr Dale will continue as a full time carer until the children are independent. This points to an amount of $740,000 being appropriate.

The allowance of $76,000 for accommodation requirements included $36,800 to provide live-in accommodation for a carer. The basis for this was expressed in these terms:

"One cannot be certain exactly how the future care will be provided, e.g. it may be provided with a live-in carer of the type I have already mentioned, or it may be provided by three different carers each working 8 hour shifts. Whichever way the care is provided, it seems to me to be reasonable that the carer be able, as Mr Deshon has said, to retreat to a private personal space. The kitchenette and the modest en-suite bathroom will probably only be needed in the event that the carer lives in and I find that such event is very likely.

In the present case, considering the effects of the injury on this plaintiff who needs constant supervision and needs care and attention, I consider I should be open-handed rather than close-fisted in assessing damages for accommodation requirements brought about as a result of the accident injuries."

It was submitted that no allowance has been made for the contingency that Mr Dale may choose to continue to care for her for the balance of her life. This is not a significant contingency, because it is improbable that he could do that and never need some occasional assistance from a person who lived in. Such respite assistance is well enough known now, and accommodation for such a carer is needed. There is no basis for interfering with this allowance.

On the basis of these reasons, the assessment should be reduced by $362,935 to $1,757,408.55 and the parties should be invited to agree upon the amount of the Public Trustee fees before judgment is entered.

The appeal is allowed, the assessment is reduced to $1,757,408.55, the parties are invited to agree upon the amount of the Public Trustee fees before judgment is entered and, failing agreement, the amount of the Public Trustee fees will be determined upon the written submissions made to the Court. The respondent shall pay the appellants' costs of the appeal.