Joyce v Geelan

Court of Appeal (NSW)|2000-11-10|Before: Meagher JA, Sheller JA, Giles JA

CITATION : Joyce v Geelan [2001] NSWCA 29 FILE NUMBER(S) : CA 40314/99 HEARING DATE(S) : 10 November 2000 JUDGMENT DATE : 2 March 2001

PARTIES : John Lemuel Joyce (by his Tutor The Protective Commissioner of New South Wales) - Appellant Heather Geelan - Respondent JUDGMENT OF : Meagher JA at 1; Sheller JA at 2; Giles JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 3203/97 FILE NUMBER(S) : LOWER COURT Norton ADCJ JUDICIAL OFFICER :

COUNSEL : A S Morrison SC & J Dupree - Appellant K J Kelleher - Respondent SOLICITORS : Graham Jones - Appellant Ferguson Holz - Respondent CATCHWORDS : DAMAGES - challenges to various components of damages for personal injury - no question of principle. COSTS - defendant's offer of compromise - plaintiff obtained larger amount - on facts, no reason to order otherwise. ND DECISION : Appeal allowed. Damages to be recalculated in the light of the reasons. Short minutes to be brought in. Stood over for mention on 9 March 2001 for orders in accordance with the short minutes to be made and the costs of the appeal to be addressed.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40314/99 DC 3203/97 MEAGHER JA SHELLER JA GILES JA

1 MEAGHER JA: I agree with Giles JA. 2 SHELLER JA: I agree with Giles JA. 3 GILES JA: The appellant was injured in a motor vehicle accident on 7 June 1990. Norton ADCJ found that the accident was caused by the negligence of the respondent, but that there was contributory negligence reducing her damages by 15 per cent. Damages were assessed at $913,852.32, made up as follows - Non-economic loss $155,400.00 Past care $42,900.00 Future care $284,404.00 Past economic loss $143,397.46

4 The appellant had claimed case management costs, but her Honour's reasons made no mention of them. They were either overlooked or refused. The respondent was ordered to pay the appellant's costs, but an application that the costs be on an indemnity basis was refused. 5 On appeal the appellant challenged the awards for non-economic loss, past care, future care, future medical expenses and Court Visitor costs, and sought an award for case management costs. Successful challenge would bring a consequential recalculation or consequential recalculations. The appellant also challenged the refusal of costs on an indemnity basis.

Outline facts 6 The appellant was born on 19 March 1961, and was aged 29 at the time of the accident. He was educated to School Certificate level. Until January 1985 he had a chequered employment history, working as a spray painter, a storeman and packer, a lifeguard, a farm hand and in a pastry shop. There were periods of unemployment, of incarceration for possession and supply of marijuana and for unpaid traffic fines, and of what the trial judge described as trading in organic vegetables. The appellant attempted but failed a welding course, but successfully undertook a landscaping course and worked in landscaping businesses. 7 In January 1985 the appellant began a pre-apprenticeship course, and in 1986 he began a carpentry course. He was successful in passing the subjects associated with a certificate in carpentry and joinery. There were more periods of unemployment and mixed employment, including as an encyclopaedia salesman, in cabinet making, as a driver, and ultimately in doing carpentry work. The government body supervising the appellant's efforts thought him an average apprentice who worked diligently and to a reasonable standard. The trial judge accepted that after his incarceration and in particular after he began his carpentry course the appellant "was doing his best to get his life in order". 8 The appellant was struck by a car driven by the respondent when he was crossing the road. Issues at the trial included whether the appellant was affected by substance abuse at the time and whether he suddenly changed course and walked into the side of the respondent's vehicle. The appellant's undoubted history of substance abuse came up again in relation to his injuries. 9 The appellant was taken to hospital after the accident, and was found to be drowsy and amnesic for the relevant events. He was noted as having abrasions to his left elbow, left thigh and chest wall. Investigation by CT scanning showed three intracerebral haematomas. The trial judge said that he suffered "some orthopaedic injury", and noted that he had regularly complained of back pain to treating general practitioners. She said no more of these matters, and nothing was said of them in the appeal. The contest at the trial appears to have been over whether or not the appellant sustained organic brain damage as a result of the accident. The respondent accepted that the appellant had suffered a brain injury, but submitted that his post-accident cognitive deficiency was due to his use of marijuana and not to the brain injury. 10 The trial judge found that the appellant had been "drug free" for some years prior to the accident, and that, while he had returned to using marijuana after the accident, he had done so because it helped alleviate his headaches. She considered that his cognitive impairment was not due to substance abuse, and accepted in particular the evidence of Dr Grant to the effect that it was the result of "severe and extensive brain damage". In Dr Grant's opinion the appellant had suffered a "significant loss of cognitive capacity", his condition would not improve, he would not be able to return to his previous occupation, and he would continue to require some form of supervision and care. 11 The trial judge said that she accepted "that there is psychiatric overlay". This was not further explained. 12 The appellant was discharged from hospital on 18 June 1990. He returned to the hospital on 26 June 1990 complaining of headaches. He was treated by a general practitioner, to whom he complained of headaches, dizziness and unsteadiness and that he was fidgety and could not sit still. He was referred to a neurologist. Over the following few years he was assessed and treated by a number of neurologists, general practitioners and rehabilitation/vocational practitioners, the different persons in part being due to him moving around within New South Wales. In general, he complained of headaches, dizzy spells and memory problems, and of back pain; he was assessed as suffering from cognitive impairment; and he received memory training and vocational living skills counselling. He did not obtain any paid employment. 13 At some time in 1993 the appellant formed a relationship with Ms Nicole Rees, and they lived together until the end of 1995. The appellant then went to live in Queensland, staying in a van at a camp site. Ms Rees visited him from time to time, and in August 1996 they went on a skiing holiday together. The appellant suffered a knee injury on the holiday, and was hospitalised. After his discharge from hospital in about October 1996 he and Ms Rees resided together until about November 1998. They ceased to reside together when it became necessary for Ms Rees to attend to her ailing mother, and at the time of the trial the appellant was living in respite care. 14 From October 1996 the appellant was under the care of Dr Tan as his general practitioner. In February 1997 Dr Tan referred him to Dr Harris, a psychiatrist, for treatment. In March 1988 an order was made by the Guardianship Tribunal appointing the Protective Commissioner to manage the appellant's financial affairs (see Guardianship Act 1987 s 25E). 15 As I have indicated, the trial judge found that the appellant sustained organic brain damage as a result of the accident. She said that it was "reflected in problems with headaches, concentration and memory and is aggravated by stress or depression". There was evidence of the change to the appellant from a number of persons - family, friends and work associates - who knew him before and after the accident, broadly to the effect that the appellant had headaches, became slower and forgetful and sometimes argumentative or aggressive. The appellant gave evidence, and understandably there was extensive evidence from Ms Rees of how his condition affected his daily living. Numerous medical and associated reports were tendered, including in the fields of social work and occupational therapy, and many of their authors gave oral evidence. 16 It will be necessary to return to some of these reports when addressing the awards for care. The trial judge found that the appellant was physically capable of performing tasks of self care and domestic management, but needed prompting to complete tasks and could not manage his financial affairs. He was conscious of his reduced cognitive functioning. Although her Honour said that he had some residual earning capacity, the appellant was very limited in his employment opportunities.

Non-economic loss 17 Under s 79 of the Motor Accidents Act 1987 the maximum amount which could be awarded for non-economic loss, but only in a most extreme case, was at the time $259,000. The trial judge considered that the appropriate proportion for the appellant's damages, determined according to the severity of the non-economic loss, was 60 per cent of that amount, hence the award of $155,400. The appellant submitted that the appropriate proportion should have been determined at 80 per cent, and that $227,200 should have been awarded. 18 The appellant submitted that, while this was not a most extreme case, the proportion determined by the trial judge was an inadequate reflection of the combination of physical injury and brain damage, as to the latter of which the appellant had a degree of insight. A comparison was drawn with Marsland v Andjelic (No 1) (1993) 31 NSWLR 162. I encompass at this point what is said later in these reasons concerning care. It is relevantly necessary to consider the appellant's pain and suffering (the immediate aftermath of the accident and the continuing headaches and back pain) and loss of amenities of life (the effect of his reduced cognitive functioning, including his consciousness of it), but they are of a lesser order than the injuries and disabilities in that case. 19 The trial judge's determination involved "questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of commonsense and judgment": Dell v Dalton (1991) 23 NSWLR 528 at 533. The principles governing appellate review discussed in Moran v McMahon (1985) 3 NSWLR 700 apply, so that what is there called the discretionary approach constrains interference with the trial judge's determination. In my opinion the determination made by the trial judge was within the range open to her, and should not be disturbed.

Past and future care 20 It is convenient to deal with past and future care together. 21 The claim for past care was restricted to care given by Ms Rees. The trial judge found an average hourly rate of $15, and said - "It was submitted by counsel for the plaintiff that Ms Reece [sic] had in fact spent at least 56 hours per week caring for the plaintiff. I have heard the evidence given by Ms Reece [sic] and I have re-read the transcript. I accept that she gave evidence that she assisted the plaintiff for approximately 8 hours a day. This evidence, however, related only to the care given since December 1996. It is also clear that the plaintiff and Ms Reece [sic] were cohabiting and some of the work she did related to her own care. Similarly, some of the time she spent with the plaintiff was really spent by way of providing company rather than care. Doing my best on the evidence available, I find that Ms Reece [sic] has on average provided the plaintiff with 20 hours per week care for a period of 2.75 years. Applying an hourly rate of $15, this results in a figure for past care of $42,900." 22 The appellant submitted that the maximum of 40 hours per week permitted by s 72 of the Motor Accidents Act should have been allowed, so that the award for past care should have been $86,047. 23 For future care the trial judge found an average hourly rate of $24. She referred to the evidence of Mr Kennedy-Gould, a social worker, and Dr Harris, the appellant's treating psychiatrist, who provided reports and gave oral evidence on behalf of the appellant, and to the evidence of Ms Arnold, an occupational therapist, whose report was tendered on behalf of the respondent. She said - "Ms Arnold made the following conclusions as to care requirements at paragraph 12.6 of her report: 'In my opinion, he would not be able to live independently, but will always require some form of accommodation, the support of a carer would be required for a minimum of 2 hours each morning and 2 hours each evening in the initial stages. It may well be possible that this care could be reduced to 5 to 6 hours per week over a period of 12 months should alternative strategies for Mr Joyce be successfully implemented with respect to activities of daily living. The carer should be responsible for providing Mr Joyce with the external impetus and organisational structure to perform the everyday tasks required such as cleaning, personal hygiene, shopping and menu planning.' I accept the opinion of Ms Arnold that at present the plaintiff requires a minimum of 2 hours care each morning and 2 hours each evening. I also accept that the need for care may reduce slightly if appropriate strategies can be implemented over time. I find it is likely that the plaintiff will require two hours care a day after the first 12 months. I note Dr Harris was of the opinion that he may be able to survive on one hour a day care. As noted above, I have accepted the evidence of Ms Reece [sic] so far as it relates to the plaintiff's drug use. I note she gave evidence that she has for some time been giving the plaintiff eight hours a day care. While I accept that she has been keeping him company for at least that number of hours a day, I do not think it is an accurate estimate of the amount of care the plaintiff actually requires. Similarly, when the care is provided by a trained person, I believe the plaintiff will need less than the 20 hours a week allowed for over the past 2.75 years. I therefore propose to allow the plaintiff care at the rate of 4 hours per day for the first 12 months at a rate of $24 per hour, a total of $34,944. I note that the plaintiff has a 40 year life expectancy and the 5% multiplier is 917.5. After the first year I allow the plaintiff 14 hours per week care at the rate of $24 per hour. This is a weekly expense of $336 which must be deferred for 12 months. Applying the 5% tables, this amounts to a loss over the plaintiff's life expectancy of $293,482 which when reduced by 15% for contingencies amounts to $249,460." 24 The respondent conceded that the reduction of 15 per cent in respect of future care was erroneous. The appellant pointed to an inconsistency between the awards for past care and future care, in that a greater need for care was found for the year following the trial than for the preceding years, but more fundamentally submitted that at least 8 hours per day should have been allowed for the remainder of the appellant's life. If the appellant's submission were accepted, the award for future care should have been $1,233,120. 25 It appears that the trial judge compartmentalised past care and future care, addressing the former by regard to the evidence of Ms Rees and addressing the latter by regard to the evidence of Mr Kennedy-Gould, Dr Harris and Ms Arnold. To some extent the evidence of Mr Kennedy-Gould, Dr Harris or Ms Arnold may have been informed by an understanding of how the appellant had coped when living with Ms Rees, but the apparent compartmentalisation was inappropriate. Awards for care are awards to meet the plaintiff's need (eg Griffiths v Kerkemeyer (1977) 139 CLR 161 at 173-4, 178, 192-3; Van Gervan v Fenton (1992) 175 CLR 327 at 331-3, 340, 347). Accordingly, regard can be had to evidence such as that given by Mr Kennedy-Gould, Dr Harris and Ms Arnold when addressing past care for the light it sheds upon the need for the care in fact provided by Ms Rees, and regard can be had to the evidence of Ms Rees for the light it sheds on those persons' opinions of the appellant's need for care. 26 Before he formed a relationship with Ms Rees the appellant had lived by himself for more than three years, a matter on which the respondent placed considerable emphasis. For some of this time he was living in his car. When Ms Rees met him he was "reasonably healthy", although she said that he was living in a van and all his clothes were ripped and mouldy - "most people wouldn't want anything to do with that type of person". Ms Rees agreed that at first she "didn't notice anything particular about his memory, concentration, that sort of thing", although she said that at the time "I wasn't observing for that but looking back I can see the pattern". She agreed that it was some time before she consciously recognised a need for care, although she said she thought she "was always doing it [providing care] without really realising it. I was doing it because he couldn't do it". 27 According to Ms Rees, she had to organise the appellant's life, ensuring he shaved and put clean clothes on, ate three meals a day, took his medication and went to his appointments. She guided him in his hobbies, which seems to have referred to an ineffectual attempt to start a worm farm (including filling the bath with peat moss) and buying timber for carpentry projects which were never completed. Ms Rees said that the appellant suffered from mood swings and became obsessive, and could not deal with two matters at the one time. In the kitchen or elsewhere he left a dreadful mess. He was able to drive himself around, but would lose his way when going to an appointment. 28 Dr Harris said that the appellant had poor memory and difficulty in sticking to the point, and that his planning capacities were disordered. He considered that there was an ongoing need for support and supervision, including to make sure that the appellant did not forget to feed himself or shower or take his medication, and in particular that the appellant could be readily exploited. Dr Harris' report included reference to an occasion on which the appellant had been charged with shoplifting "as a function of his inappropriate behaviour and poor planning skills", and to the appellant being "'ripped off' by the associates he met" when he undertook prospecting at Lightning Ridge: Dr Harris observed, perhaps extravagantly, that the appellant had "demonstrated a vulnerability to manipulation by predators". 29 Dr Harris' oral evidence in chief included, after saying that the appellant was going to need someone who would remind him to do even the basic things earlier instanced - "Q. How many hours a day would you think he would need that lay assistance? … WITNESS: The amount of time for which John would need supervision depends on a number of variables but it would not be out of the question to suggest he needs at least access to a supervisory person across the waking hours of the day. McLOUGHLIN: Q. And how many hours a day would you say that would be? A. Twelve hours a day. Q. In your view, is that a permanent requirement? A. I don't believe that John is going to get significant recovery. So to that end, anything we talk about in terms of maintaining him in the community is essentially a permanent condition. Q An occupational therapist who assessed him for the defendant said he needed four hours per day now but that would be reduced to some five hours per week in about a year's time. Would that be adequate for him? A. I wouldn't think so."

30 In cross-examination Dr Harris affirmed that something in the order of twelve hours per day was appropriate, and when he was asked about the break-up of the twelve hours his evidence continued - "A. It's difficult to take care in breaking up such a thing and saying you need so much of this time and so much of that time - it is more a matter of somebody needing to be available - so he could quite comfortably occupy the whole of his day without needing assistance provided he remembered to have a meal and so forth, and that could be done in a number of ways. But all of a sudden he may get the whim to go and build a worm farm and to go down and buy more materials for it, and he needs somebody there to say 'Hang on that's not appropriate, you've already got a pile of wood six feet high in the back yard from attempts at worm farms, don't buy any more wood, go and use some of that.' Q. Well Doctor in circumstances where - if I understand you correctly what you are really saying is that the actual need for somebody there would be what half an hour a day or something like that - this is to say 'eat', 'dress' that sort of thing? A. I think you're looking at a cumulative total over the day of something in the order of an hour - but the timings of that hour can't be predicted with any sort of accuracy. Certain aspects can - like have a shower - have a meal - but in terms of John suddenly getting the bright idea to pursue some whim or fancy they can come at any time - indeed they could come at night time but we're assuming, perhaps wrongly, that he will be asleep during those hours." 31 Later in his cross-examination Dr Harris gave evidence - "Q. Now as far as the aspect of his care is concerned - your estimate of 12 hours - where does your 12 hours come from? A. I was looking at the span of the major part of the waking day. Q. But the waking day is some 16 hours isn't it? A. Well it is - but one has to try some sort of moderation in posing such timings. I mean one could have said 24 hour a day care - I think that that would have certain advantages for him but certain disadvantages. Q. And it could be half an hour in the morning and half an hour in the evening couldn't it? A. If we chained him to the chair for the rest of the day yes." 32 Mr Kennedy-Gould said in his report - "Because of the severe cognitive deficits leading to inability to initiate, organise, carry through anything beyond the simplest tasks of personal care, John Joyce will require a high level of paid carer support for the rest of his life. In order for John to remain living a relatively independent community-based existence outside of an institution or group home setting (neither of which is a desirable or viable option for him) he will require daily attendance of a carer selected for their capacity to be able to stimulate and work with severely cognitively impaired persons such as John who nonetheless have remnants of a capacity for social/cultural activity of the type engaged in prior to the accident while under supervision and encouragement. John will require a carer for a minimum of 12 hours per day ($22-26) seven days per week to cover the likelihood of regular crises both on his own account and due to external criteria. In addition, this carer (who does not need to have a professional background) will need the supervision of a clinical professional (four hours per month at $120-150 per hour) to ensure that their responses to the expression of John's capacities and incapacities are appropriate and rather than maintaining him at current levels, that there is an active programme of attempting to maximise his remaining capacities drawing on the very real and positive aspects of his personality and background. It is essential that any care regime takes into account former interests and capacities and attempts to integrate them with his current capacities and to also initiate possible new areas of interest and activity. This professional could also undertake higher level 'case management' tasks in the areas of co-ordination of clinical services and liaison with estate management. The overarching difficulty in John's condition is inertia and he will require an active programme which structures his day in such a manner as to give a purpose and focus for such simple tasks as emerging from bed, undertaking basic self care and a programme of activity during the day. John effectively requires an 'alter ego' in the truest sense of the term, that is an external self providing the stimulus which within undamaged persons is internally generated - an obvious parallel being a cardiac pacemaker. John would require funds to allow him and a carer to undertake an active leisure/activities programme so that he was not forced for occupation and leisure into the frequently boring, repetitive tasks associated either with sheltered workshops or 'rehabilitation' programmes which are essentially set up to cater for a vastly different clientele than persons such as John, of high pre-morbid attainments with acquired brain injury. It is essential that he be involved on an on-going basis in suitable activities that will offer him interest, social contact and some degree of satisfaction. In addition it is important that he have the opportunity for regular life, in order to get away from the usual routine and enjoy new experiences." 33 I have included in this extract Mr Kennedy-Gould's reference to case management, a matter to which I will come later in these reasons, and will do the same in relation to the report of Ms Arnold. Mr Kennedy-Gould was not cross-examined upon this aspect. The cross-examination was to the effect that Mr Kennedy-Gould's opinions were only as good as the information on which he relied in preparing his report. 34 Ms Arnold accepted that the appellant was not capable of performing those tasks essential to everyday life without prompting and supervision, due to his cognitive deficits and reduced capacity to follow through a plan of action. She said early in her report - "Mr Joyce is physically capable of performing the tasks of self-care and domestic management. However, due to his reduced cognitive functioning he requires prompting in order to complete these tasks. In my opinion as a result of the motor vehicle accident, Mr Joyce would not be able to live by himself without support. He will always require some form of supervision for example in a group home, hostel accommodation or attendant carer if living in his own home. He would require assistance in order to establish a routine to enable him to maintain his independence. This could be co-ordinated by a Case Manager. If he were to live in his own home independently, he would require a carer to provide supervision for a minimum of 4 hours per day (2 periods of 2 hours per day)." 35 Later in her report Ms Arnold said - " 12 CARE REQUIREMENTS 12.1 Current Attendant Care, Domestic Assistance and Home Maintenance Requirements Mr Joyce does not require physical assistance with his personal care. However, he does require supervision and prompting. In my opinion he would not be able to effectively care for himself independently, but he does not require 24 hours per day of care.

12.2 Currently he is on his own during the day when Nicole is at work and there has been no reported history of injury or harm while he has been alone for extended periods.

12.3 Mr Joyce requires supervision and prompting to perform any of the domestic tasks including the preparation of an evening meal. 12.4 I consider that Mr Joyce is able to respond in an emergency situation by exiting the unit, but may not think to phone the emergency services unless prompted to do so.

12.5 His finances should continue to be managed by the Protective Office, as Mr Joyce is impulsive and would require assistance with bill payment. He may also require prompting and supervision in order to attend appointments, although has the physical capacity and organisational ability to do so independently.

12.6 In my opinion, he would not be able to live independently, but will always require some form of support or supervision. Should he live in his own accommodation, the support of a carer would be required for a minimum of 2 hours each morning and 2 hours each evening in the initial stages. It may well be possible that this care could be reduced to 5-6 hours per week over a period of 12 months should alternative strategies for Mr Joyce be successfully implemented with respect to activities of daily living. The carer would be responsible for providing Mr Joyce with the external impetus and organisational structure to perform the everyday care tasks required such as cleaning, personal hygiene, shopping and menu planning.

12.7 However, it would be easier for Mr Joyce to live in a shared or supported accommodation service, such as a hostel with initial support from a carer to establish a routine and supervision from a Case Manager who would provide support during times of crisis. 12.8 Future Attendance Care, Domestic Assistance and Home Maintenance Since the accident, Mr Joyce has led a fairly nomadic lifestyle until he met Nicole. It is highly likely that he will return to this form of living unless he had his own accommodation. Mr Joyce will require ongoing supervision in order to ensure his safety and health. 12.9 For his own safety, Mr Joyce would require smoke detectors, a fire extinguisher and fire blanket, training in order to establish a routine for personal safety, an electric kettle with automatic off switch, electric rather than gas stove and appliances. 12.10 Transport Mr Joyce is physically capable of using public transport, and reports that he is able to drive. Given that he has problems with finding his way around, a review by a Driving Rehabilitation Service, such as Coorabel Driving Rehabilitation Service or Cumberland Driving Rehabilitation Service is suggested. 12.11 Therapy Requirements Mr Joyce would benefit from the development of a routine in order to undertake domestic management tasks and the establishment of a leisure program. This would require a minimum of 30 hours of occupational therapy. The current hourly rate typically charged by Occupational Therapists in private practice is $120. 12.12 Case management can be provided by a variety of private organisations or by the Public Guardian. Cost for the private organisation range from $100 to $120 per hour, with a recommendation of a minimum of 1 hour per month. 12.13 Should the option of employment be accepted by Mr Joyce referral to a rehabilitation provider would be required. The current recommended hourly rate for rehabilitation providers is between $110 and $120 per hour. Due to the complex nature of establishing work trials it is difficult to estimate the amount of time. However, a minimum of 15 hours would be required, and up to 25 hours for successful implementation ($1,800- $3,000)."

36 The appellant said that, while he might survive on the level of care proposed by Ms Arnold as he had survived without care for some years, he would only do so in the squalor to which the trial judge had referred. He submitted that he was entitled to an award for future care which would permit a better quality of life than that, and that the trial judge had not correctly reflected the evidence of Dr Harris when she said that he was of the opinion that the appellant might be able to survive on care of one hour a day - while Dr Harris had said that the cumulative total for the day might be only an hour, the timing was unpredictable and there could be a need for care at any time. The reference to chaining the appellant to a chair for the rest of the day was emphasised, but it should be said that earlier in her reasons the trial judge had noted that Dr Harris had said that the need for the one hour of care per day "could come on at any time during the day". As to the trial judge's purported acceptance of the opinion of Ms Arnold, the appellant said that it was flawed because Ms Arnold had spoken only of a minimum, and that the trial judge had proceeded on an erroneous view of the function of the Protective Office because it did not provide round the clock supervision whereby impulsive spending or financial exploitation would be precluded. 37 As in other cases which come before this Court, there is a particular difficulty when the opinion of Ms Arnold was not tested by cross-examination. In this case the report of Ms Arnold appears to have followed a careful investigation, including an extensive interview with the appellant and observation of him in undertaking routine tasks, and to provide a well-reasoned assessment with a view to practical management of the appellant's situation by a mix of care and care strategies. In the absence of cross-examination, the appellant's task in overcoming the trial judge's preference for the opinion of Ms Arnold is the more difficult, see State Rail Authority of New South Wales v Akhnoukh (2000) NSWCA 321 at [7], [14]. There was no question of squalor from the absence of any future care, which was a forensic red herring. 38 As to future care, I do not think the appellant has succeeded in the task. Dr Harris recognised that full-time care was not warranted, and although his particular concern was that direction or protection could be needed at any time he accepted that as a practical matter about 12 hours care per day would suffice. Ms Arnold was alive to the variable occasions on which direction or protection could be needed, and considered that the appellant could be adequately assisted and safeguarded by a lower level of daily care plus training for organisation of daily living. This is consistent with the evidence of how the appellant coped when living with Ms Rees, who was working at the time and so was absent from the appellant for a minimum of four to five hours a day, and it is not inconsistent with what Dr Harris said about care for one hour a day if the remaining hours are met by the alternative strategies to which Ms Arnold refered. I do not think sufficient reason has been shown to overturn the trial judge's preference for Ms Arnold's management of the appellant's situation. 39 Although the trial judge did not refer to it, the evidence of Dr Harris was answered by the evidence of Dr Lee, a psychiatrist, who provided a report and gave oral evidence on behalf of the respondent. He thought that 12 hours care per day was not necessary, and was appropriate only for a person who was "psychotic or extremely brain damaged". He considered that the best course was "to initiate maybe 1 or 2 hours per day and see how that goes over a period of time", forming a judgment as to what was necessary, and thought it relevant that the appellant had "functioned reasonably well" before meeting Ms Rees and had been left by her without supervision. The cross-examination of Dr Lee put to him that the appellant needed to be protected from "doing something erratic", but he said it was very difficult to prevent, and he did not significantly move towards Dr Harris' position. 40 What I have said about future care flows on to past care, because the trial judge's view that Ms Rees' keeping company with the appellant for at least eight hours a day did not represent the amount of care he needed is underpinned by Ms Arnold's opinion of his need. I do not think the appeal should succeed in relation to the awards for past and future care.

Future medical expenses 41 The trial judge said that the appellant claimed $50,829.50 "based on the evidence of Dr Harris that the plaintiff requires one psychiatric assessment a month at $200.00 and fortnightly visits to his general practitioner at $18.50". She said that Dr Harris gave evidence that Dr Tan was very competent, and - "I accept that the plaintiff has been seeing Dr Harris on a regular basis since he was referred to him by Dr Tan. Given the competency of Dr Tan and the fact that the plaintiff will be supervised by Court Visitors and by qualified carers I think it unrealistic to allow for one psychiatric assessment a month. I find it appropriate to allow for the plaintiff to be reviewed by a psychiatrist twice a year and to be seen once a month by his general practitioner. This amounts to a total of $622.00 per annum or $11.96 per week. The 5 per cent multiplier for 40 years is $917.50 a total loss of $10,973.00. Reduced by 15 per cent for contingencies results in a figure of $9,327.05." 42 The respondent conceded that the reduction of 15 per cent was erroneous. The appellant submitted that the award should have allowed for monthly consultations with a psychiatrist and fortnightly visits to a general practitioner, and that the trial judge's determination was flawed by regarding Court Visitors and qualified carers as substitutes for psychiatric assistance. In particular, it was said, without more regular psychiatric consultations there could not be appropriate prescribing and monitoring of medication. An award calculated in accordance with the appellant's submission would be $49,791.80. 43 In Dr Harris' report it was said that the appellant was prescribed "an array of mood stabilising sedative drugs with a view to controlling his erratic behaviour and to improve his sleep", that all these medications had the converse effect of stimulating him, and that ultimately approval was sought from the Department of Health to prescribe the stimulant Dexamphetamine. This, it was said, provided "significant benefit in terms of concentration and mood stability", making the appellant less erratic and difficult to live with and more competent at reacting interpersonally, and it was likely that the appellant would need to use Dexamphetamine "ongoingly", but the medication "carries a number of risks which will become increasingly significant over time". Mood fluctuations were nonetheless experienced, and a trial of the mood stabiliser Lithium was being undertaken. 44 In his oral evidence in chief Dr Harris said that the appellant had responded "very poorly" to Lithium and the trial had been abandoned. His evidence continued - "Q. In your view does he have an on-going need for psychiatric assistance? A. John has an on-going need for support and supervision. In terms of psychiatric assistance, he certainly needs supervision of the medications which he is taking. Indeed, the dexamphetamine can only be prescribed to an adult by a psychiatrist or a neurologist in this state. Much of the time I spend with John is involved in support ventilation and helping him to see his way round various situations which may have upset him. That is not something that one needs to be a specialist psychiatrist for necessarily but I would like to think that I have a greater expertise than some people in providing that sort of service."

45 A little later, after reference to the care which could be provided by an unqualified person, Dr Harris said - "Q. In addition psychiatrically should he continue to see you? A. Other than the requirements of the Department of Health in terms of his dexamphetamine prescription, I wouldn't say he needs to see me in particular, but he needs to have adequate support from some sector. OBJECTION McLOUGHLIN: Q. Is that a psychiatric sector, psychological sector, or could that be handled by a general practitioner? A. I think it could be handled by his general practitioner. I have worked with his general practitioner and find him to be a highly competent practitioner, but I would not necessary extend that to any general practitioner."

46 Later again Dr Harris said - "Q. Doctor in that evidence at page 73, you gave some evidence as to the professional support he needed in addition to lay support, what professional support did you have in mind for the future, that he needed? A. Well he's certainly going to need his medication monitored and adjusted from time to time. Adjustment I can only envisage may be required, but certainly monitoring is definitely required, both from a clinical viewpoint and also through statutory regulations pertaining to one of his medications. I think that he's also going to need help from other professionals depending on the circumstance, the living circumstance in which he finds himself. If he is in, for example, some form of sheltered accommodation, staffed by professional people. John will still need people somewhere to remind him to brush his teeth, to eat a meal, and do common day to day things that we all take for granted as being automatic and second nature. Q. From a medical point of view Doctor, what does he need psychiatrically and medically? OBJECTION. QUESTION ALLOWED. A. He's going to need to see a consulting psychiatrist or a neurologist, and I would say on a minimum monthly basis, for the monitoring of his medications, his mood state and his general well-being. This could be supplemented with attendance with his general practitioner, assuming he remains in that same area. He already has a strong rapport with his current GP and he and I work together in assisting John. If he does find himself living significantly far away from his general practitioner he's going to need to find another doctor who can be as attentive and as patient with John's fairly erratic presentation. Q. Is that on a monthly basis as well to a GP presentation? A. I would think that would need to be more frequently, something of the order of fortnightly."

47 The respondent submitted that the trial judge was entitled to find that monitoring of both mood and medication could be carried out by a general practitioner with referrals to a psychiatrist as necessary and periodically. However, so far as this depended on continued resort to Dr Tan continuation was by no means assured, and the prescription and monitoring of Dexamphetamine called for regular consultation with a psychiatrist. Court Visitors or carers could perhaps suggest or cause consultation with the general practitioner or psychiatrist, but would be unlikely to provide "support ventilation" of the kind Dr Harris had in mind and could not themselves provide medical assistance. In my opinion the trial judge did not have sufficient grounds in the evidence for the much more limited level of future medical attendance she thought appropriate, and on the evidence the correct award was in accordance with the appellant's submission.

The trial judge allowed $11,807.30, taking one and a half visits a year by a Court Visitor from the evidence of Mr Kennedy-Gould and with a reduction of 15 per cent for contingencies. The respondent conceded that the reduction of 15 per cent was erroneous. She also conceded that an assumption of one and a half visits was erroneous, because under Pt 76 r 43 of the Supreme Court Rules in the absence of any special order or direction a protected person must be visited by a Court Visitor at least once in every six months. Correcting these errors, the award should have been $18,526.16.

Case management 48 I have earlier set out from the reports of Mr Kennedy-Gould and Ms Arnold their references to involvement of a case manager. The evidence did not otherwise explain the role of the case manager or any particular things the case manager would do. 49 The respondent conceded that an award for case management costs should have been made, but on the basis of one hour per month at $120 per hour. The appellant submitted that the award should be on the basis of one hour per week at $120 per hour. 50 The submissions did no more than take up the hours in the respective reports. Ms Arnold recommended a minimum of one hour per month case management. Mr Kennedy-Gould recommended four hours per month. In the absence of explanation of case management, of how the respective estimates were made, and of relevant cross-examination of the authors of the reports, a rational choice between the two recommendations or arrival at any other number of hours can not be made. The allowance, established by concession, should be on the basis of one hour per month. The amount is $23,396.25.

Indemnity costs 51 On or about 14 March 1995 the appellant made an offer of compromise in the sum of $250,000 plus costs. He obtained judgment for a considerably larger amount. Under the relevant District Court Rules, unless the Court otherwise ordered he was entitled to his costs from the day on which the offer of compromise was made on an indemnity basis. 52 The trial judge said that it was clear from the statement of particulars dated 28 February 1994 that "at that stage there was no claim for care and only a limited claim for future economic loss". She contrasted those particulars with the amended statement of particulars filed on 1 October 1998, saying that the latter particulars included claims for past and future care and a claim that the appellant was completely unemployable. She said that she accepted that the nature of the case changed substantially after the offer of compromise was filed, and that it was obvious that at the time it was filed "not even the plaintiff's representatives realised the full injuries and disabilities suffered by the plaintiff". 53 After referring to further authority, the trial judge said that the fact that there was a real issue on liability was not sufficient, of itself, to disentitle the appellant to an order for indemnity costs, nor was the fact that the particulars changed substantially after the offer of compromise had expired. She then said - "Looking at the case and its history as a whole, the following things appear to be relevant to the exercise of the discretion. 1. There was a very significant change in the nature of the case and in particular the extent of the brain damage being claimed by the plaintiff.

The independent witness, Sister Skinner, was not noted on the P4 and did not speak to police on the night of the accident. In those circumstances the defendant had had no opportunity to interview her prior to the Offer of Compromise expiring.

The Offer of Compromise was filed in March 1995, three and a half years before the case came onto trial.

The independent witness not being available to the defendant is, I think, an exceptional circumstance and the fact that the nature of the case changed significantly after the expiry of the Offer of Compromise suggests to me that the course the defendant took was "perfectly reasonably [sic]" and therefore I decline to make an order for indemnity costs." 54 There is some obscurity in her Honour's reasoning. It seems that the fact that the offer of compromise was filed well before the trial did not enter into the exercise of discretion, except perhaps to explain that there was a period during which the nature of the case changed. Although the change in particulars was put aside, for all that her Honour said the finding of change in the nature of the case was founded on the change in particulars. It seems, however, that her Honour considered that the respondent reasonably thought at the time that $250,000 was an excessive assessment of the appellant's prospects, in part because she was unaware of what evidence might be given by Sister Skinner and in part because the particulars dated 28 February 1994 indicated a more modest claim. 55 In my opinion, the trial judge exercised her discretion on a wrong basis. It is sufficient to refer to the second of the matters she thought relevant, although as will appear I consider that there was error as to change in the nature of the case. Sister Skinner was a witness to the accident. It was incorrect to say that she was not available to the respondent. The appellant and the respondent were in the same position in relation to identifying, locating and interviewing Sister Skinner, and the respondent had the same opportunity to interview her as did the appellant. The "exceptional circumstance" on which the trial judge relied in part should not have been seen as relevant to the exercise of discretion. 56 The discretion must be re-exercised. In appropriate circumstances a significant change in the plaintiff's claim after the service of an offer of compromise may warrant an order otherwise. But in the present case the statement of particulars of 28 February 1994 clearly put the respondent on notice of significant injury, particularising head injury including a right frontal and right temporal haematoma and disabilities which included headaches, impaired co-ordination and concentration, memory loss, and impaired co-ordination and concentration. The particulars of loss of income included that the appellant was unfit for work requiring organisational skills. Further, prior to March 1995 the appellant had served on the respondent at least three medical reports supporting organic brain damage and significant cognitive impairment. The offer of $250,000 plus costs, even in the light of the then particulars and medical reports, called for the most serious consideration by the respondent, and I do not think that there was such change in the appellant's claim thereafter as to warrant an order otherwise. 57 The respondent's failure to accept the offer may have been because the respondent saw doubt as to liability, but there was no evidence from the respondent's side explaining its position. The ordinary forensic hazard of difficulty in predicting the result of a trial does not warrant an order otherwise, and I can see nothing in the present case to obviate the operation of the rules in favour of the appellant. He should obtain his costs on an indemnity basis.

The result 58 It will be necessary for the damages to be recalculated in the light of these reasons. The appeal should be allowed, and the parties should be directed to bring in short minutes to give effect to them. 59 At the hearing of the appeal we were requested to defer making an order as to the costs of the appeal. Accordingly, the proceedings should be listed for mention at 9.30 am on Friday 9 March 2001, at which time orders in accordance with the short minutes can be made and the costs of the appeal can be addressed. __________

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Cases Cited (5)