KELLY McCANN v. NSW SELF INSURANCE GROUP [2012] NSWSC 488

Judgment 1His Honour: On 13 September 1985, when the plaintiff was aged 3 years and 7 months, she was catastrophically injured in a motor vehicle accident. The accident was a collision between two vehicles, in one of which the plaintiff was travelling in as a passenger. 2There was no issue before me that the plaintiff's injuries were of the most serious kind. The evidence read included an affidavit of the plaintiff, sworn on the 4th of February 2011, which, inter alia, annexed a number of reports of Associate-Professor John Yeo. In his report of the 21st of June 2010 he diagnosed a permanent C3 tetraplegia as a result of a serious cervical spinal cord injury. The plaintiff requires a respirator for the 24 hours of each and every day to assist with respiration, and she requires assistance for all activities of daily living. Miss McCann has no significant useful function in either upper limb, and I infer either low limb. She uses a motorised wheel chair with head controls and a mouth stick. 3The plaintiff was delivered of a healthy baby girl, whom she named Myra, on 28th June 2010. 4In his second report of 15th November 2010, Annexure A2 to the plaintiff's affidavit, Associate Professor Yeo recorded that the plaintiff was receiving nursing (or a nurse assistant) care, 24 hours per day, seven days per week. And nanny care on the same basis for the adequate care of her daughter. At that time he described her condition in the following way: A physiotherapist attends once a week involving the patient in one hour of therapy which usually includes use of the motorised exercise bike, passive movements of both upper and lower limbs and the use of a standing frame for up to 45 minutes. She continues to require suction by her attendant carers in order to maintain an adequate airway for up to ten occasions during the day and up to four occasions during the night. A paralysed neurogenic bladder is emptied by a suprapubic catheter which is changed every three weeks by one of the nurse carers. The colostomy is emptied with assistance from irrigation every second day. The patient generally avoids the problem of incontinence of urine and/or faeces. She has not suffered from any episodes of tropic skin ulceration recently and has only one respiratory tract infection yearly on average requiring treatment. The patient continues to use the PLV 100 ventilator (two machines for an emergency). Her clinical examination confirms the patient is a high level C2 tetraplegic (sic) casualty with some faint flickers of movement in the fingers of the right hand, which are not functional and with some sense of sparing below the level of her lesion. She requires support in a motorised wheelchair which is mouth controlled and adapted to carry her respirator. 5Proceedings for damages were brought in this court on behalf of the plaintiff in matter no. 13500 of 1986. The claim was settled by way of a structured settlement, which I infer, was approved by the Court pursuant to the provisions of the Damages (Infants and Persons of Unsound Mind) Act 1929. 6The documents giving effect to the structured settlement are Annexure "B" to the plaintiff's affidavit. They consist of, first, terms of settlement making provision for a lump sum payment of $450,000 and a deed entered into on the 28th of November 1986 between the plaintiff's father, Robert Charles McCann, who was her tutor, and the Government Insurance Office of N.S.W. It will be recalled that by s.14(1) Motor Vehicles (Third Party Insurance) Act 1942, as it stood as at the date of injury (13th September 1985) provided that any proceedings to enforce any ... claim for damages shall be taken against the Government Insurance Office and not against the owner or driver of the motor vehicle. The defendant is the statutory successor to the Government Insurance Office of N.S.W. following it's privatisation. See Advanced Abor Services Pty Ltd v. Phung [2009] NSW SC 1331 per Johnson J at [55] - [58]; New South Wales Self Insurance Corporation Act 2004; Government Insurance Office (Privatisation) Act 1991. 7Although it will be necessary to return to the language of the deed in detail, in broad terms it provides for ongoing benefits for the plaintiff in respect of full time nursing care, domestic care by a housekeeper, hospital and medical expenses and the provision and maintenance of curative apparatus and equipment. 8Following the approval of the original settlement in November 1986, orders were made under the Protected Estates Act 1983 in the Court appointing the Protective Commissioner manager of the plaintiff's estate. Through legislative amendment, that role has been assumed by the N.S.W. Trustee and Guardian. The settlement lump sum which, one infers, covered all heads of damages other than those the subject of the deed, was invested in accordance with the legislation from time to time in force, currently N.S.W Trustee and Guardian Act 2009. Currently, there is a sum of a little over $300,000 invested on behalf of the plaintiff by the N.S.W Trustee and Guardian (plaintiff's affidavit page 3 [14]). 9I was informed by Mr. Kelly, solicitor, who with Mr. Watson, solicitor, appeared for the plaintiff, from the bar table, without objection from Mr. D. Stanton of Counsel, who appeared for the defendant, that the plaintiff is currently in receipt of income from the following sources and in the following amounts: Part time employment with each of Liverpool Catholic Club and Spinal Cord Injuries Australia $600 per fortnight; Disability allowance $300 per fortnight; Parenting allowance $200 per fortnight Family Tax benefit $50 per fortnight TOTAL$1,150 Per fortnight 10The plaintiff gave evidence, which was not contested by Mr. Stanton, that from time to time, in company with her nursing carer, Myra, and Myra's nanny, she goes on outings to a concert, the cinema, or the zoo. I would regard activities of this nature as part of the ordinary incidents of domestic life of most families in our community. 11Ms. McCann told me that the cost of admission to these entertainments varies from $20 to $40 to $100, depending upon the event involved. She said that she had been issued with a companion's card and that upon its production some venues admitted her carer without charge. Other venues did not, and the carer was required to pay the ordinary charge for admission. She said that when this occurs QBE, the defendant's agent, reimbursed the cost. 12In her affidavit, the plaintiff said that Allianz Insurance Australia Limited ("Allianz") was appointed by the defendant as agent to manage her claim in 2006: plaintiff's affidavit page 3[12]. She said it is my perception that things continued harmoniously with Allianz until about 2009/10 (plaintiff's affidavit page 3[13]). 13With regard to the issues before me, a dispute had then arisen about the intensity of the plaintiff's need for domestic care (in addition to nursing care). The Deed of 28th November 1986, by clause 2A(b), provided for domestic care by a housekeeper up to a maximum of 40 hours per week (my emphasis). I infer that this domestic assistance had been provided at that maximum level of intensity since 1986. However, Allianz on reconsideration, of the matter, in the latter part of 2010 reduced this provision to 14 hours per week. 14At page 4 [20] of her affidavit, the plaintiff said: I am attended around the clock by nurses, or nurses aides, or carers and my daughter is attended around the clock by a nanny. This is funded by Allianz (as agent for the defendant). Some domestic assistance is also provided by Allianz, but a disagreement presently exists with Allianz as to the appropriate level of that care. 15The reports of Associate Professor Yeo annexed to the affidavit and marked "A1 - A2" respectively address that disagreement. 16To resolve this dispute the defendant commenced proceedings in matter no. 2011/00030817, naming the present plaintiff as defendant. The parties took their dispute to mediation, which was successful. A second Deed was entered into on 8th March 2011 to supplement the 1986 Deed (Clause 5 of the 1986 Deed was rescinded) and the 2011 Deed was "approved" by Schmidt J on 6th April 2011 pursuant to s 73 Civil Procedure Act 1973 ("CPA"). The Court's orders with the 2011 Deed attached are Annexure C to the first affidavit of the plaintiff's solicitor, Mr Watson, sworn on 31st of August 2011, read before me. 17In that part of the 2011 Deed entitled Substance of Agreement, Clause 1 iii Care Expenses, (a), (ii), which applies during any period that [the plaintiff] has a child under the age of 14 years living in her household, as is the present situation, provision is made, in addition to fulltime nursing care, and care of the plaintiff's child, for up to a further 29 hours each week for additional domestic assistance. 18It was accepted by both parties that the maximum of 29 hours per week represented the plaintiff's need at all material times from 8th March 2011 to the present, although it goes without saying, that the common expectation of the parties as expressed in the language of the Deed admits the possibility that less domestic assistance might be necessary at different times in the future. 19What happened next is the subject of some common ground between the parties. I qualify that statement because each party places a different emphasis on how the current dispute arose. I think it unnecessary to resolve the differences of emphasis between them because each accepts that the new regime contemplated by the 2011 Deed was not fully implemented on behalf of the defendant until about the end of November 2011. By then the plaintiff had commenced these current proceeding by filing her summons on 31st August 2011. 20At about the time the 2011 Deed was approved by Schmidt J. the defendant terminated the appointment of Allianz Australia Limited and appointed as it's agent, QBE Insurance Australia Limited ("QBE"). To put it entirely neutrally, during the handover the baton was dropped. Initially QBE maintained the former regime of 14 hours per week and when it's error was appreciated, implemented the new regime erroneously by providing 26 hours of domestic assistance and 3 hours of handyman assistance, rather than 28 hours of the former and 1 of the latter. Consequently, it was accepted by the defendant, through it's Counsel, Mr. Stanton, that the plaintiff did not receive the benefit of the care regime to which she was entitled according to the parties common expectation as to the operation of the 2011 Deed, and to that extent, the defendant accepted it was in breach of it's obligations under the Deed and the plaintiff was entitled to damages for that breach, the quantum of which is agreed by the parties in the sum of $12,422.22. (See MFI 2). 21Given this agreement, it is unnecessary for me to discuss the basis of the calculation of these damages. It's worth noting, however, that it is well established that damages for vexation, disappointment and distress are recoverable, at least where those conditions proceed from physical inconvenience caused by breach of a contract, one of object of which is to provide enjoyment, relaxation or freedom from molestation: Baltic Shipping Co. v. Dillon (1993) 176 CLR 344 at 362-3 per Mason CJ. A fortiori where, as here, the contract was one to provide, inter alia, necessary assistance for a catastrophically injured person in the performance of the ordinary activities of daily life. 22The plaintiff's present entitlements are those conferred by the Deed, and not by the law of damages relating to tortiously inflicted personal injury. However, it is not irrelevant to consider that in the latter area of discourse Griffiths v. Kerkemeyer (1977) 139 CLR 161 damages are awarded to address a plaintiff's tortiously created need regardless of whether or not the need is productive of actual financial loss: Sullivan v. Gordon (1999) 47 NSWLR 319 per Mason P at 322; Van Gervan v. Fenton (1992) 175 CLR 327 at 333; Kars v. Kars (1996) 187 CLR 354 at 360 and 370. Statute aside, the measure of the loss is the market cost of providing the necessary services to redress the need: see the analysis of Beazley JA in Sullivan at 328[40] - 329[44]. Given the commercial purpose and object of the Deed, in my view, these considerations would not have been irrelevant to the calculation of damages caused by a breach of it. The Issues 23In opening his case, Mr. Kelly handed up a schedule of proposed orders (MFI 1) which did not precisely mirror the relief sought in the summons. The damages sought were recalculated (MFI 2 is a schedule of those calculations) and a new claim was advanced raising the question whether the defendant was responsible under the terms of either Deed to pay the cost of admission of a carer to entertainments attended by the plaintiff. Mr. Stanton was able to meet this new claim, notice of it apparently having been given to his solicitors in November 2011. 24During the course of the hearing, it became apparent that there were three issues for determination: (1) Whilst the defendant accepted that the plaintiff's current entitlement to "additional care" by way of domestic assistance was at the intensity of 29 hours per week, on discretionary grounds it opposed the making of any declaration of right, or any injunction in respect of it; (2) The same approach was taken in relation to the cost of case management incurred on behalf of the plaintiff; (3) The defendant denied that the cost of admission to entertainments of carers was an entitlement under the Deed, and again on discretionary ground opposed the making of orders. As I have already stated, the defendant accepted its liability for damages for breach of contract. Evidence 25I have already referred to the plaintiff's oral evidence and affidavit. Additionally, the plaintiff read four affidavits of Mr. Grant Watson, the solicitor, bearing dates 26th October 2011; 31st October 2011 (x 2); 30th November 2011 respectively; and an affidavit of Mr. Robert McCann, the plaintiff's father, sworn on 4th February 2011. A letter from the Service Co-Ordinator of the Nursing Group dated 9th May2012 concerning QBE's practise in relation to paying admission fees for carers was admitted without objection (Exhibit A). 26The defendant sought and was granted leave to file in Court an affidavit of Anneliese Platcher sworn on 20th November 2011, which had been previously served. Ms. Platcher is the case manager employed by QBE handling the plaintiff's claim. Ms. Platcher was not available for cross-examination and Mr. Kelly objected to the affidavit being read (used) under r.35.2(3) UCPR. For reasons I expressed in a separate judgment during the course of the hearing, I ordered otherwise, within the meaning of the sub-rule, and permitted the defendant to read the affidavit, there being no other objection to its use. 27Given the narrowness of the issues presented for determination by the parties, it is unnecessary for me to undertake a detailed review or analysis of the evidence, beyond the material I have referred to above. As is common, and in large measure, the affidavits presented a narrative, some of which was based on hearsay that would have been inadmissible had objection been taken, and the annexure of correspondence passing between the parties. I do not criticise the parties for adopting this approach. By the time the matter came before the Court for hearing, there were no real issues of primary fact. Carer's Cost of Admission 28Although the third issue, this was the only substantial issue of interpretation and construction argued by the parties. It is necessary to set out some provisions of the Deeds: A. The 1986 Deed: 2A In respect of Kelly McCann's future domestic and nursing care, the G.I.O. agrees to pay upon receipt any or all invoices statements accounts or other documents evidencing expenses incurred by or on behalf of the plaintiff during the plaintiff's lifetime for, and will indemnify and keep the plaintiff indemnified during her lifetime against the reasonable cost of all future: (a) fulltime nursing care; (b) domestic care by a housekeeper up to a maximum of 40 hours per week. rendered to the plaintiff whether in her own home or elsewhere and whether by professional or para-professional persons. 3.The G.I.O. agrees to pay upon receipt any or all invoices, statements, accounts or other documents in respect of all reasonable future hospital & medical expenses incurred during Kelly McCann's lifetime and arising out of or in relation to Kelly McCann's injuries and their aftermath. 6.In this Deed:- (a)"care" includes the provision of domestic and nursing attention reasonably necessary for Kelly McCann; 8.The G.I.O. acknowledges and agrees that this Deed and the promises indemnities and agreements contained herein shall operate and/or be deemed to operate as an indemnity within the meaning of Section 8 of the Government Insurance Act 1927, (as amended). A.The 2011 Deed: Substance of Agreement For the avoidance of any confusion and ambiguity and so that the parties will have clarity and certainty as to the extent of their obligations and entitlements under the 1986 Deed and for the avoidance of future disagreements or disputes, it is agreed and declared as follows: 1 In addition to the terms of the 1986 Deed and in clarification of certain items of the 1986 Deed in light of circumstances now existing, the Agent (including its successors or assignees) agree to pay: a.to the Trustee (or its servants or agents as directed by the trustee); or b.To Kelly (or her servants or agents ad directed by Kelly) in the event that there shall be at a future time no trustee; iii. Care Expenses During any period that Kelly has a child under the age of fourteen years living in her household, this Clause applies in the place of clause 2A(b) of the 1986 Deed. (a) The Agent agrees to pay upon receipt of any or all invoices, statements, accounts or other documents evidencing expenses incurred by or on behalf of Kelly during her lifetime and will indemnify and keep Kelly indemnified during her life time against reasonable costs of all future child care and domestic care provided by a housekeeper whether by professional or paraprofessional persons based on the following services provided to her:- (i) During the first five years of any child's life: Care of the child including domestic assistance twenty-four hours a day seven days a week (except in respect of any period that the child attends pre-school or day care); and (ii) Up to a further twenty nine hours each week for additional domestic assistance including handyman, gardening and maintenance assistance or any other domestic assistance of any description. 29As at the reprint of 28th August 1986, the Government Insurance Act 1927 (repealed by s.17 Government Insurance Office (Privatisation) Act 1991) provided every policy or contract of insurance or indemnity issued or entered into within the authority of this Act, every contract entered into in respect of the insurance funds administration business of the Office and every contract of such class or description of contracts, if any, as may be approved from time to time by the Treasurer is hereby guaranteed by the government of New South Wales, and any liability arising under such guarantee shall be payable out of the consolidated fund. 30In Jireh International Pty Ltd v. Western Export Services Inc. (2011) NSWCA 137 Macfarlan JA at [52] to [65] reviewed the authorities concerning the interpretation and construction of commercial contracts. Among the authorities referred to by his Honour were the observation of Gibbs J in Australian Broadcasting Commission v. Australasian Performing Right Association (1973) 129 CLR 99: If the words used are unambiguous the Court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The Court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust "even though the construction adopted is not the most obvious or the most grammatically accurate" .... His Honour also referred to the statement of Kirby P (as his Honour then was) in Hide & Skin Trading Pty Ltd v. Oceanic Meat Traders Limited (1990) 20 NSW LR 310 at 313 - 314: Whoever may be the parties to the agreement, it is a fundamental rule, that the Court give the words of a written agreement the natural meaning that they bear. Subject to that rule, in giving meaning to the words of an agreement between commercial parties, courts will endeavour to avoid a construction which makes commercial nonsense or is shown to be commercially inconvenient. This is because courts will infer that commercial parties will not, themselves normally agree in such a way. 31At [63] Macfarlan JA concluded that it was permissible to depart from the ordinary or grammatical meaning of a provision only if the relevant provision would have an absurd operation if construed in accordance with the literal meaning of the words used. 32Whilst it may be that the Deeds imposing the obligations of the present defendant, and conferring the entitlements of the present plaintiff are not commercial documents as such, there is no reason to suppose that the approach to contractual interpretation expressed by his Honour is not applicable. 33However in the event of any ambiguity it is well to bear in mind that the matrix from which the agreement of the parties sprung was the plaintiff's claim for damages for personal injury in respect of catastrophic injuries. Accepting that accord and satisfaction applies to such a claim, it is also relevant in the case of ambiguity to consider that the Deeds, simple and brief as they are in form and content, constitute a framework for meeting the accident created needs of the plaintiff over her lifetime. The Deeds are, of course, silent as to the minutiae of the day-to-day administration of the structured settlement over this last period of nearly 26 years. It is also relevant to consider that the Deeds will continue to operate to govern the relationship of the parties, in all probability, for decades to come. To this extent, then, the Deeds need to be given an ambulatory operation, and a construction which further this purpose should be preferred to one which is static or fixed. 34Moreover, it seems to me that the purpose and object of the Deeds, as I have stated, is to provide for the ongoing medical, hospital, support needs and the like of a catastrophically injured person. These important aspects of purpose and object suggest a beneficial approach, at least where the meaning of the language is not intractable, ought to be taken. 35In any event, I have come to the conclusion that the ordinary, grammatical meaning of the words used supports an entitlement to payment of carers admissions fees as part of the benefit provided by Clause 2A of the 1986 Deed, which in this respect is unaffected by the provisions made for care expenses on page 4 of the 2011 Deed. 36Clause 2A provides for, inter alia, the reasonable cost of all future ... fulltime nursing care ... rendered to the plaintiff whether in her own home or elsewhere and whether by professional or para-professional persons. Care is defined as including the provision of domestic and nursing attention reasonably necessary for the plaintiff. One may amplify the operative provisions of clause 2A by reference to the definition in the following way: The reasonable cost of all future fulltime nursing attention reasonably necessary for the plaintiff, rendered to the plaintiff whether in her own home or elsewhere. 37If the care is to be full time and is to be rendered to the plaintiff both in her own home and elsewhere then that nursing care must include attention to the plaintiff wherever the ordinary activities of her daily life take her, be it to the shops, a park, a concert, the cinema or the zoo. Obviously, these examples are not intended to be exhaustive. But if the plaintiff goes to the cinema it is medically necessary that her nursing attendant carer accompany her. And if admission is charged to the carer, then the price is part of the cost of providing fulltime, nursing care. 38The Deed was originally entered into when the plaintiff was a pre-schooler. Her reasonable needs for care at that time were obviously different from those of a young woman with her own child, as she is now. Doubtless, her needs will change over the decades to come. What is reasonable now may not be reasonable then. But in the context of what I have referred to as the ambulatory operation of the Deeds, it seems to me, bearing firmly in mind the objective requirement imported by use of the word reasonable, and of the expression reasonably necessary, carer admission is covered by Clause 2A of the Deed. Questions about the reasonableness of other excursions at other times can be determined if and when they arise. 39I think it important to point out that, in my view, Mr. Kelly was correct to emphasise the opening words of Clause 2A including: The GIO agrees to pay upon receipt any or all invoices; and promise to indemnify and keep the plaintiff indemnified ... against the reasonable cost of the care I have spoken of (emphasis added). To my mind this demonstrates that the parties intended that the plaintiff was not to be required pay those costs out of her own pocket, and await reimbursement. Rather, the primary liability for payment was to lie with the defendant. In this regard, I note that Exhibit A is evidence that in past performance of these obligations, QBE, as agent of the defendant has reimbursed the provider of the nursing care for expenditure on tickets for entertainments invoiced to it by the latter. Although I have not relied upon this evidence of performance in interpretation of the agreement, I do note that this is the arrangement that one would expect to be in place, giving the words of Clause 2A their natural meaning. Remedies 40As I have said above, whilst conceding the entitlement to a judgment in her favour for the agreed amount of damages, the defendant argues that, as equitable relief is discretionary, neither the declarations, nor the mandatory injunctions sought, or anything like them, should be granted. It is argued that notwithstanding the "dropping of the baton" I have referred to in relation to the plaintiff's then current domestic needs in 2011, the defendant has been shown by reference to the affidavit of Ms. Platcher to be compliant at present with its obligations under the Deeds (page 2[18] - [21]). Mr. Stanton also relies upon Exhibit A as evidence of compliance. And it is accurate to say that as the last evidence from the plaintiff was filed on the 30th of November 2011, there is no current evidence to suggest the failure by QBE to meet the defendant's obligations on its behalf. 41It is axiomatic that equitable relief is discretionary. In Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 at 114 the High Court quoted with approval the following passage from Story's Commentaries on Equity Jurisprudence: [T]he interference of a court of equity is a matter of mere discretion ... And in all cases of this sort ... the court will, in granting relief, impose such terms upon the party as it deems the real justice of the case to require... 42Those comments were in the context of a claim for recision and specific performance, but similar statements are to be found in the context of declaratory relief. In Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507 Lord Sterndale M.R said the following: ...the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion. The discretion should of course be exercised judicially, but it seems to me that the discretion is very wide. These comments were cited with approval in Forster v Jododex Australia Pty Limited & Another (1972) 127 CLR 421 at 436 per Gibbs J (with whom Stephen and Mason JJ agreed). In that case Gibbs J, with the agreement of the other two Judges named, also said (at 437-38): It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., should in general be satisfied before the discretion is exercised in favour of making a declaration: 'The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.' Beyond that, however, little guidance can be given. 43It is also apparent that the onus is on the applicant for a declaration to establish the ambit of the rights to be declared and to prove matters of both fact and law necessary to enable the declaration to be made: Blanch and Others t/as Hicksons v British American Tobacco Australia Pty Ltd (2005) 62 NSWLR 653 at 655 per Young CJ in Eq. Furthermore, the Court must be satisfied both that the declaration sought is appropriate and that it has sufficient practical utility in resolving a dispute: Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 per Barwick CJ and Jacobs J at 307. 44Mr. Stanton placed special emphasis on the frequently cited speech of Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Limited [1921] 2AC 438 at page 448 cited above in the judgment of Gibbs J, as his Honour then was, in Forster. But it seems to me that so far as the question about a declaration is concerned, in respect of each matter, the question involved was real, it goes without saying the plaintiff has a real interest in raising it, and the defendant is a proper contradictor. 45Moreover, given the history in the matter of frequent disagreement, if I may put it generally, about the defendant's obligations and the plaintiff's entitlements, under the Deed, in my judgment, there is utility in making the corresponding obligations and entitlements of the parties clear in respect of those matters that have been either the subject of disputation or non-compliance from time to time over the period covered by the evidence. 46Furthermore, given the necessary flexibility incorporated in the drafting of the provisions for care expenses in the 2011 Deed and in particular in the provisions relating to additional domestic assistance in Clause 1, iii, (a) (ii), having regard to the agreed position, and bearing in mind that declarations may be orders until further order, I consider that the interests of justice between the parties require a declaration of right as to the plaintiff's present entitlement in that regard. 47Doubtless, circumstances will change. It is for this reason, as I have said, that I have referred to the operation of the Deed as ambulatory. It is to be hoped that when either party has evidence of a change in circumstances, ongoing entitlements can be worked out between them in an amicable fashion, even if this means returning the Court for a variation of my orders by consent, to give effect to any new arrangement. This, to me, does not seem unduly onerous, and indeed, I consider it to be appropriate given the plaintiff is a person in respect of whom the Court has in the past made orders under the protected estates legislation, in respect of whose affairs the N.S.W. Trustee and Guardian has a continuing role, and having regard to the consideration that what may be called for is a degree of supervision of a structured settlement approved by the Court. 48Also, I have had regard to the serious nature of the plaintiff's injuries. It would be indeed unfortunate if, as occurred in 2010, the defendant's agent for the time being made a unilateral decision to reduce the additional domestic care in such a manner as may pose a more than trivial threat to the plaintiff's wellbeing. 49For almost the same reasons I have formed a different conclusion about the mandatory injunctions sought. It seems to me to be highly undesirable for the Court to descend into the regulation of the minutiae of the ongoing administration of the Deed, and therefore of the plaintiff's entitlements, by the defendant. In forming this conclusion I bear in mind the statement of Lord Upjohn at (665) in Redlands Bricks Limited v. Morris & Anor [1970] AC 652: The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be "as of course". Every case must depend essentially on its own particular circumstances. Any general principles for its application can only be laid down in the most general terms: : 1.A mandatory injunction can only be granted where the plaintiff shows a very strong probability on the facts that grave damages will accrue to him in the future.... it is a jurisdiction to be exercised sparingly and with caution, but, in the proper case, unhesitatingly. .............. Despite natural concerns for the plaintiff's well being, it cannot be said on the evidence before me that there is a very strong probability on the facts that grave damages will accrue to the plaintiff in the future. 50I have already noticed that the settlement embodied in the 2011 Deed was "approved" by Schmidt J under s.73 Civil Procedure Act 2005. The use of the verb to approve is more suggestive of the powers and duties conferred upon the Court by s.76(4) CPA. I have also noticed what are, in effect, recitals at clauses 3 and 4 of the introductory portion of the 2011 Deed and I am unsure whether the order made in 1986 under the then Protected Estates Act 1983 is current. As against this, the plaintiff has acted sui juris in these proceedings and in the last. But I think it prudent in the first instance to order that the damages be paid into Court pursuant to s.77(2) CPA. 51The parties raised the question of costs during legal argument. It is my understanding of the defendant's position that if I decided, as I have, to make a declaration of right that the plaintiff is entitled to her costs on the ordinary basis. 52In the result the plaintiff is entitled to the following declarations, judgment and orders: 1.Declare, until further order of the Court, that under the terms of the Deed of Settlement between the parties dated 8th March 2011 and approved by this Court on 6th April 2011 in matter no. 2011/00030817, the plaintiff is entitled to and the defendant is obliged to bear the cost of, the provision of 29 hours per week of additional domestic assistance including handyman, gardening and maintenance assistance. 2.Declare, until further order of the Court, that the plaintiff is entitled to, and the defendant is obliged to bear the cost of, case management services under the provisions of the Deed dated 28th November 1986 between the parties and approved by this Court in matter no. 13500 of 1986. 3.Declare, until further of the Court, that the plaintiff is entitled to, and the defendant is obliged to bear the cost of, her nursing carers' admission fees to entertainments attended by the plaintiff, under the terms of clause 2A of the Deed between the parties dated 28th November 1986 and approved by this Court in matter no. 13500 of 1986. 4.Judgment for the plaintiff against the defendant in the sum of $12,422.22. 5.The proceeds of the judgment are to be paid to the N.S.W. Trustee & Guardian in its capacity as attorney managing the affairs of the plaintiff pursuant to s.77(3) Civil Procedure Act 2005. 6.The defendant to pay the plaintiff's costs of the proceedings on the ordinary basis.

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