Future care
49 As counsel for the defendant submitted, it is necessary to give some attention to the basis on which the court makes allowance for any proposed regime of future care. The law for Australia has been authoritatively laid down, in Sharman v Evans at 573, by Gibbs and Stephen JJ (with whose analysis, in their joint judgment, of "the approach which a court should take to the assessment of damages" in a case such as that was, and this is, Jacobs J expressed at 590 his full concurrence). Gibbs and Stephen JJ declined to allow the plaintiff's preference to govern their choice of the form of treatment for which allowance should be made in the award. Their Honours said:
"The plaintiff would much prefer [a particular mode of care] but the question is whether the defendant should be required to make compensation upon this much more expensive basis.…In our view the medical evidence in this case does not justify the conclusion that the defendant should be required to compensate for future nursing and medical expenses on any basis other than that the plaintiff's future will be one substantially spent in hospital.
The appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendant; as Barwick CJ put it in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 661 "The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent", and see Chulcough v Holley , per Windeyer J (1968) 41 ALJR 336 at 338. The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost-involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest."
50 Their Honours' reference to the rejection of costly benefits that are "speculative" reflects a passage in the judgment of Windeyer J, to which they had referred, in Chulcough v Holley at 338:
"What is to be provided for is expenditure which has been or will be incurred, not for expenditure which may possibly be incurred."
51 Of course, a possibility of increased expenditure, which is not balanced by a corresponding possibility of decreased expenditure, may be allowed for, not as something that will be incurred, but according to the measure of the chance that it may occur. But some of the matters the plaintiff would seek to have taken into account in the present case relate to the possible, but not certain, adverse condition of the plaintiff, or adverse family situation, and it must be borne in mind, as Professor Yeo and Professor Ouvrier made clear, that the plaintiff's condition may undergo some, if comparatively slight, improvement, and it is certainly possible that his family situation will turn out to be better than the gloomy forecast made in the evidence of a complete breakdown in the relationship between his mother and father, and a possible collapse of his mother's ability to continue to take a significant part in his care.
52 In submissions in reply, counsel for the plaintiff summed up the differences between the parties in relation to future care as concerning, first, the appropriate rate to allow for the cost of a full-time carer, whether the one person or two or three persons working in shifts, and secondly, the question whether it will be necessary to supplement by some additional care the full-time care envisaged.
53 Costings on somewhat different bases have been provided, for the plaintiff, by the evidence of Ellice Mayhew, a registered nurse, and Helen Mendels, a care consultancy manager, and for the defendant, by the evidence of Shirley Wruck, a registered nurse. It is not suggested that the proposals of either party would not provide effective care, but the plaintiff's counsel would prefer theirs, which are more expensive. I am not satisfied it would be reasonable to require the defendant to compensate the plaintiff on the more expensive basis, when the less expensive alternative is available and would, I find, be delivered in an entirely professional manner and be reasonably suitable. Counsel for the defendant accepted there would have to be some modification of the calculation of cost put forward to allow for a greater expenditure on public holidays (adding $88.11 per week to a calculated weekly cost of $2,917.14), and that a modest additional amount should be provided to cover increased remuneration which might become payable "if it continually happened" (as Sister Wruck put it) that the plaintiff had a seriously disturbed night, requiring a sleep-over carer to be up more than twice in a night. This provision is suggested in relation to some evidence that the plaintiff's mother has had to get up from seven to ten times in a month for periods of from half an hour to three hours. I do not think it is predictable how much this may occur in the future, particularly with a regime of professional carers subject to some form of experienced review, as is proposed, and I consider the defendant's suggestion of a lump sum allowance of $20,000 is entirely reasonable.
54 The more difficult issue is the plaintiff's claim for further provision for daily care, on top of a full-time carer provided through a shift-work arrangement, as Sister Wruck proposes.
55 Professor Yeo gave evidence to the effect that provision should be made for "attendant care which might (emphasis added) be greater than one person can manage". In justifying that, he referred to his own optimism but also, with some self-deprecation, to the need to consider the views of experts with more extensive experience "in this area of head injury and personality changes". He had in mind the possibility that the plaintiff, as he grew up, might become "difficult to handle" or "even violent". But he also made it clear, and I accept, that the present prognosis "might be less optimistic than it should be". One of the plaintiff's experts certainly fulfilling the criterion of relevant experience is Dr David Bell, whose great array of qualifications to assess the position includes his appointment as Honorary Psychiatrist to St Vincent's Hospital, Sydney. In response to a suggestion of the plaintiff's solicitor that problems might develop "at the onset of puberty", Dr Bell commented:
"You have indicated to the defendant that at the onset of puberty your client will need a male carer 24 hours of the day. You may be correct. I do not know how to predict what will happen. You refer to the matter of growing strength. Your client will always have a right hemiplegia and poor balance. Sadly, he will not gain the strength of a normal person nor the ability to overpower the normal person. There is no certainty how he will behave. At present his mother regards him as more easily managed than her husband. When she cried he responded in a sympathetic fashion. Even with normal strength he could be more tractable than the so-called normal person such as his father. Nor is it necessarily so that he will have 'completely disinhibited sexuality' to which you refer. More commonly, the person with severe brain damage has impaired sexuality. He may do no worse than to attempt to touch in a simple fashion, easily managed by a carer. The type of scenario which you envisage occurs very rarely.
I suspect that the assessment by the mother is more realistic. Should your client develop in the way you fear, he will certainly require care for 24 hours of the day. Were his mother not there, he would have to have a carer 24 hours of the day. While his mother is there, she will need assistance with him at the time she specified, mainly in the mornings and at night. In these circumstances, a team of carers working two shifts a day will make life more manageable for her. As he gets bigger, the need for assistance will increase."
56 Dr Brent Waters, a psychiatrist who, for seven years, was a professor of Child Psychiatry at the University of New South Wales gave evidence, which I found convincing, and which was consistent with the opinion of Dr Bell. Dr Waters said that it is from children who, when very young, "show a nasty malicious edge" that "the more dangerous adolescents are largely recruited". He did not think the plaintiff was one of those. The doctor said:
"He, I would have to say, comes from a low risk group because of the way he was at [the age] of five. He's already showing a pattern of more placid temperament, responding to appropriate limits, that sort of thing…So that you could say that his risk of showing persistent inappropriate sexual behaviour, for instance, would certainly be less than one in ten and may well be less than one in twenty. In terms of his displaying inappropriate and persistent, indeed intractable aggressive behaviour,…perhaps somewhere around fifteen per cent might be a reasonable expectation."
57 Opposed to these views was the opinion of a psychiatrist who examined the plaintiff's parents, but not the plaintiff, Dr Burke. He put the risk much higher, but I prefer the assessment made by Dr Waters, which is supported by Dr Bell. Accordingly, I find there is only a slight risk of significantly troublesome aggressive or inappropriate sexual behaviour in itself requiring additional assistance to be provided for the plaintiff's carer.
58 In the submissions prepared by counsel for the plaintiff, it is proposed that, in addition to full-time care, "a second attendant carer is required to assist with showering and dressing the plaintiff for two hours in the morning and one hour in the afternoon to assist with helping him to bed, undressing etc." A further requirement for a second carer, it was claimed, would arise when the plaintiff attained the age of twelve years. For these submissions, reliance was particularly placed on the evidence of Ellice Mayhew, whose expertise was endorsed by Professor Yeo. However, on the whole of the evidence, the extent of any difficulty with which the second carer might be concerned would be likely to depend very much on the degree to which the plaintiff himself, as he grows older, is able to provide some level of co-operation with his carer. The evidence of Dr Waters, which I have accepted, suggests he will be co-operative. The proposition put by counsel for the plaintiff, in cross-examination, that the plaintiff might be difficult to handle in the future because he might grow to the size of his father has to be considered with a degree of caution; he might also be small like his mother and, on the medical evidence, there is really no prospect of his developing into a strong man. As Shirley Wruck pointed out, the problem of size, from the point of view of nursing, relates to weight rather than height.
59 I found the evidence of Shirley Wruck quite persuasive. She was cross-examined at some length without anything emerging to cast doubt, in my mind, on her conclusion that a regime involving the constant presence of one carer would be appropriate. There is a very small chance that the onset of puberty might require some further provision for a period the evidence did not define, but then the plaintiff's mother made it clear she wished to continue to be involved in the plaintiff's care, although unable to maintain the exhausting but "absolutely wonderful job looking after this very disabled little boy" which, as Shirley Wruck described it, she has been doing up to the present, and if, in the upshot, her involvement is somewhat greater than is presently contemplated, there is the countervailing possibility of a reduction of expense. The evidence made it clear that, up to the present, the plaintiff's parents have set their faces somewhat against reliance on outside help which they did not find absolutely necessary.
60 Other matters, for which the plaintiff's submissions claimed, were the attendance of a registered nurse for one hour per week, but only after five years, during which the plaintiff's mother would be assumed to supervise the plaintiff's care, and an allowance for six hours per month, at a cost $243.03 per week, for the employment of an advocate/case manager. The evidence of Shirley Wruck is to the effect that these would be unnecessary luxuries, certainly at the level suggested, since agencies that provide care for persons such as the plaintiff "provide an oversight of the quotation [sic - scil rotation] of the carers, the provision of the carers and the activities of the carers" and "that oversight activity [is] incorporated in the rates" assessed by her. She also thought that the plaintiff's mother, as an individual, "would be more than adequate", to keep an eye "on whether the carers are doing a good job and whether they are being rotated properly and whether they are attending to their duties". It is also to be borne in mind that, as the defendant submits, the Protective Commissioner will obviously have a role in relation to this plaintiff.
61 The plaintiff claims for handyman services on the basis of four hours per week at $25.00 per hour. But at his age, he would obviously not be personally doing any handyman work. In a normal family, any one of a number of persons may do work of this kind during a child's infancy. Indeed, as has been indicated earlier in this judgment when provision for the capital cost of the home was examined, most young men up to an age in their twenties would be unlikely to be involved in much work of this sort. The defendant's suggestion of an allowance at the rate sought by the plaintiff, but deferred till he attains the age of eighteen years, seems to me a reasonable way of allowing for the unascertainable possibilities that would be involved. Subject to adjustment to allow for life expectancy on what I have found to be the correct basis, I accept the defendant's submission.
62 The plaintiff's submissions also seek an allowance of an additional $207.20 per week for an attendant driver. It does not seem to me that this provision is reasonable. There is no basis for thinking that the plaintiff's carer, or for a number of years, in all probability, his mother, would not be able to drive him. The question is really tied up with the question of whether any special vehicle is needed, to which I shall return. If the plaintiff is driven by his carer, the driver's wages are already provided for through the carer's wages. There was no suggestion in the evidence that a carer would demand some additional amount for driving the car on an outing which would, doubtless, relieve the monotony for the carer as much as for the plaintiff. Especially over the years during which the plaintiff is growing up, it is likely that, as is the case with many children, he will be driven by his mother, in particular to school. In the circumstances of this case, although much driving of that kind would be part of the normal course of family life, it is reasonable to make some allowance for driving over and above the normal duties of a mother which will or may be involved. I take this into account in fixing the appropriate amount to be allowed under the principle of Griffiths v Kerkemeyer. I think it is probable, although I will build into my assessment allowance for other possibilities, as I shall indicate, that, over the next thirty years, the plaintiff's mother will provide gratuitous services, including necessary additional housekeeping work and some assistance to the paid carers, over and above what she would otherwise do for the plaintiff, which should be assessed as equivalent to twenty-five hours per week. I have been conscious, in assessing that figure, of the risk of double compensation by the allowance of the cost of some care, as likely to be provided by commercial carers, and the allowance of the same aspect of care as likely to be provided by the mother gratuitously. I have also been conscious that the mother's care may continue for longer than thirty years, or may come to an end much sooner. I have not overlooked that I have already held the plaintiff's care can be provided by a regime involving the work of a single carer at a time. Nevertheless, while that is the general position as I have found it to be, there may be times, whether because of illness or some other emergency, when more may be required. Doing the best the court can to take account of the incalculable, I think an allowance assessed in the manner I have stated should reasonably be made, to take account of these various possibilities, in addition to the amount I have already held should be provided for future care. Being assessed in respect of so many possibilities, it does not involve an assumption that the care to which it looks will in fact be furnished in one particular way or combination of ways over the period of the rest of the plaintiff's life. Rather, a calculation based on twenty-five hours per week for the next thirty years is more than I would otherwise allow under Griffiths v Kerkemeyer, so as to cover the possibilities which I have mentioned.