Layton, William v Walsh, Margaret Doris [1978] FCA 33

Federal Court of Australia|1978-05-22|Before: Josme J, Cornor JJ

DANAQRS - INFEMEBCES AMD ASSESSNENTS IN ABSENCE OF EVIDENCE

or eraciric OF SXPRNSES - ALLOWANCE FOR FINANCING PLRARS OF LIFES REMAINING TO SERIOUSLY DISABLED PLAINTIVY - GRNNRAL DAMAGES.

RoE Tg LO beiknon Appellant t Pd BOURARET PORTS VALS Respondent rf

at APPEAL from the Supreme Court ef t d4ustralian Capital Territory

TRE COUNT COMSENG THAT the appeal be dismissed, with costs.

a APTBAL free the Supreme Court t festraiian Capital Territory

Tete is ap appeal fren a judgeent of the Supreme Court of the austvakjes Capital Territory (Josme J.) awarding the respondent 0953,553 damages for personal injuries.

The reepentent wasn injuved en 15 November 1974. She was then 64 yours of am. Prior tc that day she was an active healthy satedkiguat wont living vith her husband in Canberra and aajeying a fell and happy life. She was described as being Peas wf omnevey, a porese whe went out a lot 'all the time really' a wegelar shureh-goer, interested in and preud of her garden

and howe and a geod housekeeper. She was an active companion of her mashed with vow she attended feotball matches and other functions. Slee was very interested in her grandchildren. A Fecent photograph of the respondent was admitted in evidence

amd it sugporta om inference that she was an attractive woman

Tt 18 selevamt te at least ome aapeect of this case that she was

alwaye eo sent dresser, tall aed slim and 'a person you would

leok at twice, actually' and with an attractive speaking voice.

on 18 Sevenber wrk Siew wuffered very severe injuries when she wae s paesenger in « weter car which came into collision with a vehicle Griven by the appeliant. The appellant submitted to judigeent in these preceedings and the only issue at trial was

The evidenss called om behalf of the respondent established the mature and pretebie comsequemces to the respondent of the injuries, the type cf weman she was before the accident and the king ef life te whieh she wae reduced. Beyond establishing the hespltel and medical and nursing home expenses to the date ef trial end the current fees of the nursing home in which the respeudant was then living evidence was not led specifically to the probable menetary cansequences to the respondent of her injyeries wach as medical, hospital, pharmaceutical and prreietherapy expenses or the probable costs of steps such as

belideges or travel vwinich it would be reasonable for the

weepentiunt te imevs to alleviate the restrictions imposed upon

her by her ka jorios in the manner of her living. It was also a feature ef the trial that comeel for the appellant refrained

fren asking sary questions of amy witness called for the reepoeudent and the appeilant called ne evidence. The evidence in chie# cf the various witnesees stands therefore in unqualified Term as support fer euch inferences as may reasonably be drawn

"fey plaintéfl westsined herrifying injuries in a motor webdetle eadlistien en 18 Movember 1974, and was that day shubtted te Gonberrea Mespital umcenscious due to cerebral coutunion and sancassion. She hes no memory of the time cf the sccddent as she was deeply uncenscious for operentastety three weeks and sewi-conecious for another three weehke, Sint vomniwed in heepital until May 1975. ee had nbdutinai injaries consiating of a ruptured liver,

tepbared epleen, reptere of her portal vein and a ruptured duoderee Tee liver was repaired amd the spleen, duodenum

and gorta} vein removed om the day of admission. The Pinintaff alee maffered, amd I quote from the medical repert which seebere the injuries as follows : Fracture of wtme ribe om her right side; secondly, fracture of Glavical smd stapaia on right side; thirdly, right

therany fourtbly, Fotts' fracture of the left leg lene Wee roedueed and fined); fifthly, there was a treneverne fracture of the left tibia (the leg was placed

im plaster but it remains grossly swollen even today);

sizthly, = ceaphete peralysis of the left arm and hand so thet meow she walkea with the aid of a stick. The paralysis is pennenent. Seventhly, contusion of her brain. This wee d@ae te bead injuries and was her main problem.

'A tracheoteny wee performed for her chest injuries. Her cheat has recewered reasenably vell. She has suffered senstderabio lees of function but is not breathless. Her peed fadle ebightiy te coms side die to paralysis of her week mepelee end she opille food when eating due to her partial face paralysis. She can only eat meals that are eat wp for ber. See cammet drees or undress herself.

Se tue te Beer comebedy mearby if ske goes to the toilet, betes, ot¢.. @me will always need mursing care and be a outdo tnveLisc. Ghee ig likely te develep increasing pain and gtiffoming of the ieft shoulder and possibly other joimts tu her left side wheich will require drugs and Shrchethewngy treaternt from time to time. She will regeinve anti-epileptic drugs for the rest of her life.

"In Becomber 197% she was described as having had a left Rentivratesia of her face, arm and lec. There was a failure

te comjugate gape to the right. And te go back further _ - Chad, epypwesiontely three weeks after the accident a wap diagnesed isading to suspicion of a sgeteanton mevemtom! thet is mesevlar paralysis of half ohn atm, ene leg, parts of the face, the abdomen

= ih tee beft atte of tha bedy. She also had an the om the right side vhich suggested carly Rawsliantien suggested a subdural haematoma on

t petieteal regten. Seploratory craniotomy on the phe OF the hued vase then carried out. At the time wae taken to the operating theatre she had nn aehiieet at rt an the left upper limb even to forceful cahentattem. Mer ieft lower iim) was encased in a firm pingtes af parie. tne vas waable to speak but could

The. epwention pevesied thet the brain vas bluish and aentiy G0feaciy bevised. A small haematoma was found weer the Seiandic region. Im the region of the haematoma Teare Wee & very email cortical rupture of the brain and a fou 2140620 Pragmente cf damaged brain substance was sucked wut of the dnewatene.

'2 Pied an & fact that the plaintiff suffered brain damage ow & sonwogoonce ef tha collision. It would be proper to ony Vent ete had a severe brain injury. The operation wae dome welder local aneesthesia and it was clear at the and ef 1% thet thee piatutiff's arm weakness had improved a] whet aie wemld meve it under forceful stimulation.

Ry whid-demeary 1975 the plaster on her injured left leg hed heen weweved and the progress of the injury was antiefuatery. Bet sabe oti) wee witheut voluntary

ap the left cpper lin. By 25 June 1975 the plaints??? het wode progress; whereas she had had for a beng thme ne ppwech fomction at ali, that had ended and aS wee Glog tant she bed competent intellectual function.

'Ser Left Mewl-puresia weich profoundly affected her upper Die ahew abfeeted ber lower limb mot did not prevent her

waiting er Se Ned decided te live alone in her own . Nevertheless her injuries were

a0 atnbe wes fail to be aseoviated with physical eee waleerebility. She lived for a short

in Dobe oem sperement but with her injuries it was for this be ceutisus long. Mer head injury peodeeed » weakmees in her left ankle leading to a

me datoont ty in week the jeg is turned outwards which Wert enky waeenfortabiece wat rendered her unstable and Pepebred traeament by we erthepacdic specialist.

sunral sive cease cmliled a Jacksonian fit affecting the

wepee left ited While im beepital previously she had

6 suber of these seizures. A Jacksonian fit is an de fit. Balemtin was prescribed, and as a result

@hawy. Tee time had arrived for her rio longer to live

ahene end aha mered inte hospital in Queanbeyan at the end

wt t9TS, ant in Jaweary 1976 went to a Queanbeyan nursing ihe. Wiide there she found that she ceuld not read much hee

at & bwandache, and an eye examination a im awd loas of vision which is permanent. oan tohimg pein Killing Grugs. The only new symptom tant wien she turmes to the left she had an odd shaky

fooking owe the left aide. There was still in April 1977

she "oe wt akighnt left side facial weakness with severe tien femetion eepeciaily affecting the left upper 1imb

thee teft heed is useliass. She requires a sling Revemee of the parniysia of the arm. The left arm is held sprteee Mee chest vali, She vears a celiper to support fu®t Serper Leg ond weika with a rolling gait but cannot pone and ken to use 8 stick. Mer speech is slightly

'ee ennitian is permanent due to treumatic brain damage aed ale 2632 alweys require waraing care for the rest of wer 2395. Bhe has boon re@aned by her injuries from

Aeellimg an attive life te having become a greatly crippled wep, wn Her yreeest cirewnstances cause her great

"er epeeial dumnges comsiet of amounts paid for medical and

prday Mapes" eupenese, which coma to $23,061 of which the +7 fe the amount of Conmsenwealth subsidy re

the Conmemwoalth of Australia. Nursing ieews wapemeee for the reat of her life must be previded. At powweut they ameunt te $178 per week.

Rare Se detewmine what is ber likely period of life laveheg wegned to ali the vicissitudes of life and having Tegiend te the evidence it appears te me that it is proper tant 30 yearn is the reesonedlie expectation of life Sad

"IN 2a met sentented that the present value on seven per oumt tebtes ef £078 per veek for 10 years 15 $67,462. In 2 tm t@ inciwded te amount of Commanwealth subsidy

'Se qeentt be alee allowed general damages for injury, pain

anh wetfaring. In ay apiniom the proper amount to award and special damages is $160,523, but from that

Quneral atin meat be deducted $3,959 already paid by defendant.

Tee wepeiioant eeutemis that the sue avarded is excessive and

anys te pertsoaler tit the learned judge failed to allow

phegpentels fhe We wisciasitudes of life, tHat the amount of the « bys gt Or aU ga a ee rs

eum averded which is attributed to 'injury, pain and suffering' Gveriags the enownts attributed to mirsing home fees and that in

We are wmable to accept the contention that the learned judge @id nat give mhequete consideration to the viscissitudes of life. Bie Memewur expreasly stated that he had regard to them. He found as @ fact that at the date of trial the respondent's expectation of life was ten years. This figure was assessed en evidente that notwithstanding their serious nature the regpeadaent's injories sheuld not alter the respondent's life expectamey, that according to the national life tables the overage expectancy of a person of her age was twelve years.

The learned jndge toak an expectancy of seventeen per centum teas then the average. There is no certainty that she will not live lenger. It is to be observed also that the life tables referred te im evidence befare the learned judge were those of Australian Males. The cerreeponding tables in respect of women show that the respondent's life expectancy according to the average female statistics vas three years longer than was stated in evidence. The female tables were admitted in evidence at the hearing of the appeal subject to consideration of the validity ef reference being mede thereto. Mr. Norris for the appeliant chjected te such reference on the ground that he would we deprived of the right of cross examination of the medical witnesses in respect thereof. Mr. Finlay for the respondent aeugkt to use the tables to show that the learned judge should

have previded for a longer period of payment of nursing home fees

' Xt is ear view that the objection of Mr. Norris should be upheld to the extent thet the tables shonid not be used in a way which might lead te variation against the appellant of the finding of fact mode by the learned judge. Wut allowing for the poositaisaty of the significance of the female tables being rederved by cress examination they nevertheless do support the view that the peried adepted by the learned judge was not

In mr view the learned judge was justified in adopting the stated average lees the allowance that he made. It isa Feasaneable view that the chances of the respondent suffering death ly accident on the roads has been diminished by the

The contention that there was overlap is dealt with as part of the diecusaion of the general contention that the amount awarded ta pininly exceasive. The real issue in this appeal arises in respect of the gemeral camages avarded. That amount was $137,462. As agaessed by the learned judge it was made up of $67,462 ne the capital sum required to sustain the nursing home fees fcr '0 years at present rates and the balance namely

It was saig by Barwick C.J. in Sharman v. Evans (1977) 13 ALR 57 at p. 59 that 1

'..-.the fundamental principle is that the exercise of @iscretien Wy the trial judge in the estimation of damages @aghnt net te be interfered witk by an appellate court unless

= +¥tn3 Judge bas erred in point of lew or in his approach te the qeeengment er unless the assessment itself, by its

diapropertion te the injuries received, demonstrates error aw the of the trial judge. Notwithstanding some views om hawe been ezpresesd, the function of a court of » in ay opginien, ia not to offer what in connection

the eneteer diseipline would be called "a second opinion", @ eourt is etrictly confined te the remedy of error in eeéed op in the aseesement of the trial judge. It *% Me tre stromgly said that a mere difference of

en te what cought to have been the proper award of @ues not indicate error on the part of the trial Teis Gietinection between mere difference of opinion epmer hae Seen variously expressed, perhaps not always tiefacstioan te tke mind, But there is a radical Mhatinetion wetunen the tve situations whether the error be atyied degemetrabie or cthorwise described. Suffice it fer preavat purposes that mere difference of opinion on a etter of fauet er assesment dees met warrant a conclusion tant the triml jedge's view was mistaken or erroneous ealling for remedy by a court of appeal.'

t= Samemn ¥- The.Rawiaal Defepiant (1977) 51 ALIR 315 at p.317

Gibde J. eited with appreval tke following passage from the Sedqeent ef Grow 1.3. 4m PRint vy. Lovell (1935) 1 KB 354 at

"Im offeet the ewert, befere it interferes with an award of damages, whasld be satisfied that the judge has acted on a wreng principle ef las, or has misapprehended the facts, or ame fer theese er ether reasons mede a wholly erroneous seotinnte ef the demage suffered. It is not enough that Weare is o Delowee of opinion or preference, The scale Stent ge down hewvily against the figure attacked if the apprilate eeurt is te interfere, whether on the ground of

Im tit seme ease Aidchin J. referred to the remarks of Barwick

C.J. 1m Cilemp v. Petetey (1975) 50 ALJR 207 at p.209 where he

'The getting eside of am award of damages in a trial which jen wat bees irregmiar or unfair, and where there 1s neither ahallenge te the findings of fact made by the trial judge wer emmy Genenstrated misconception of the evidence should, ia ey epduden, be a most unusual event, to occur only in ohrvompeteneece where the disproportion between anjgury and wear of G@ameges is so great as to make the award quite deemed outrageous, in the circumstances, boing teo great cr too small: and therefore of

atecdlf a demexetration of errer present though otherwise wundiacionsd, The leas ponderable the elements of the Gemages wader compideretion, tha less likely will there be a ¢aan few ontting aside an award by a judge who has not everivebed amy signifiaemt fact at the end of a trial not paewtleleed Wy error or trregularity.'

'In ay epivion the preper appreach to this case 1s to look aS Wee tetas aus awarded as general damages and at all the cizumeatenese, the pain ané suffering, past, present and Pacurs, the giyyaical Giaabilities, the medical and

ppeehabegheal gruviens whieh are inevitable for the future, the a€fuet om enrning sapatity amd the kinds of additional eeete waked the appeilent will mecessarily incur, and to oak wnaeekf? whether the sum of $150,000 is "out of all venemn® os *"ubelly disproportionate to the circumstances",'

Fineliy, with reference te the task of the court on appeal, in

the waveperted cave ef Kalisy and Others v. Debs. (see (1977) 51 ALIA 206} 1m a judgment concurred in by the four other

'Re ecwiticiow was made in this court of the Master in Yuagect of Bis seperate quantification of each item in

order te arrive at the total sum awarded. It 1s still meteanaty te consider however whether that total has

boom dememetrated te be so excessive or so disproportionate te the hoes euffered, that it cannot stand.'

ae toa Wee taek of the learned judge at the trial it 1s useful to jeek abt the vemerke of Dixon J., as he then was, in Pamment v. Rawal (1949) 75 cua 406 at pp.410 and 411. Speaking of sempengatien fer personel injury he said :

*Qat this counsel ef woderation does not mean that a @etfendant 4g to be relieved of any part of a just and fair Coagemnetion in weney for the injuries which a plaintiff has walfered na a consequence of the wrong. It means only - vant im neweseing a jet and fair compensation the purpose ke nat te ettanpt by means cf money completely to insure tent the plaintiff will be placed for the rest of his life iin the anme peeition as if he had net sustained the Raguetes. & full compensation must nevertheless be enented. It is « compensation once for all. Besides thea aectwal expenditure incurred as the result of the wrong

emi the eatwel leas ouffered the damages must cover a resuenghde entimate of fwture lass and expenditure, a sum feoveleg & Teawenelia resenpense for the pain and suffering the piedinta??r tae widergone and for any further pain and

elfhotng hen mag be expected te undergo and, if he has, as im this ense, ent fered @ permanent injury, an amount to tebe fer that ant for the changed circumstances

ouigpenante of 14%e £¢ avtetic. These last items of compensation Cumeet le aokeuletest amb cam ouly be measured according to

te atendar@s which genersily prevail, and a reasonable | tTiengtion ef whet te allequate to the cccasion. The

Matatenbng perdkmesing power of waney has robbed the standeeds of pant experience of mich of their

ox ® teat, The emuiety of judges of former times ' See 'partes sieeld bo entravagant in expressing their

whbh phaducifie at the expanee af defendants has eqneuhat againet plaintiffs. At all rf

1% ounme ne longer necessary to remind ourselves of 'Vine feperrtenbe of waking cenrervative estimates of the egeneehian a plimintiff shewid receive for physical

Bin Menowr nade ne chservations as to the matters he had eomeidered or the ceurse he adopted which led to his decision time the $76,006 should be a component in his award. This has jad to commideraeie difficulty in deciding this appeal.

Rewevex, we de wet tirink that it changes the general nature of tiee tusk of tha ceurt, namely to determine whether the appellant Ras demenetrated that the learned judge acted on a wrong principie of law, or has misapprehended the facts, or has for ather rvressces wade « wholly arronecus estimate of the damage wot'fered. tm the absence cf stated reasons for the decision of them learned jndge it would seem that to be successful the attack om tie seed mast demenetrate the last of these possible errors

ty relgting the apcunt avarded to the items of damage within its

Rt ts peeedhle to read the remarks of the learned judge as sarneetne a view that $70,000 was the sum appropriate to

compensate the respondent in respect of injury, pain and suffering eempidured as an item of damage apart altogether from atten of eupend@iture other than mursing home costs which would flaw trem ber injuries or in other words that he proceeded on the heade that the eum of 667,461 would cover all items of expenhitowes a®ising cut of the respondent's injuries and that the wen af 070,008 bné in it mo wometary component and related only

te the perpensl incevrvemience and suffering of the respondent.

Xe oup wiew, bewerer, the remarks of the learned judge should not be oc andaerstoed. Ve consider that the judgment should read as costveying Ghat ali the damages other than the stated special Ganges were general dswages, that there were two components, meametiy an the ens hemtl, nursing hame expenses for the rest of er 21fe and om the ether, vat could be called 'general damages for tnjyary, pain end weffering' vhich comprehended all other aepectes «ff gimerel Guunges whatever they might be. In this Feepoet Rie Bomwer wad ample evidence of the physical injuries of Mee srengpen@ent end the kind of life to which she was reduced saree the @ignbihities she had to endure. But he had very little evithentwe ef aypeeific Binds of expenses which the respondent weeid inour im the fetore because of her injuries or of the aupeney wiekeh the respondent might reasonably incur at the appetiant's eupense, im alleviating her disabilities. We do wot, thdmb that it was a comaequence of this situation that these eongpunees egald te ignered or were ignored by the learned judge. We certainly do net interpret his remarks as a finding that no wuch enpounes would be incurred. In our opinion the mere atphogent ef the injories and their prognosis gave rise to an

inevitebie inference that sewe such expenses would be incurred

an a Fin@ing te the contrary ceuld not stand. Had His Honour Bern reqaired te mm up to e jury an the evidence we consider it would hove teen his Gaty to inform it that it might have regard te eneh expenses Grawing inferences from the evidence which they censideted caght reasonably to be drawn and that so far as the

Geeta of Ppelewant items were considered they might use their own keewledge, tut because ef the absence cf evidence to guide them, they sheuld take care to eneure thet their assessments were fair

and reasemadie tc the defendant as well as to the plaintiff.

Ver caxrrent perpeses it is eur view that we should look at the Jedigment of the learmed judge as though he had applied this rake. Et je the rule which we consider we ourselves should apply if the jusigwent umder appeal were set aside and it were neceseuvy fer this ceurt to make an assessment. Accordingly, ve leak at the judgment as one arrived at by this rule. In reaching this aewesement it wes necessary therefore for the leasned jodige te consider the pain and suffering of the FTeependant and the expenses referred to. In his reasons for fodgeuni the leaermed judge described the respondent's injuries as hempifying. It cannot we thought that this over-stated the woitentties. Thare is ne Gowht that the learned judge was supreseed with the wafferings and continuing disabilities of the veopemdent whieh were and ave of a very special nature. One aspect ef her ¢omfition and her disabilities is that her iuteliagence yvemnine keen with the result that the degree of

her dary to Gay disabilities, deprivations, aundignities and

wr iaant imgosense ave fully in her consciousness. Also they

are of #4 kind which introde upon her consciousness practically every waking moment of every day. And also by reason of her

remndning sapncities the respondent is unlikely to give up and ge te bed wed will in future make the daily effort to be mobile

aed interested end te extract as much as possible from life.

Be would refer te the description of the injuries of the respenduet wet har bespitalisation and treatment as stated by the legend judge and veuld add some comments aa to the respondent's

present combitiom wriok it is reasonable to think the learned

After settiing dewu from the initial effects of her injuries,

ene of the respondent's trowbles has been that she has a left arm and hand which just hang from her shoulder and are completely weelone. The hema is svollen. The arm and hand must be comtinucusly held in a siing which, unaided, the respondent is unable to fit, What heppens in bed was not described but sbvieuely that aew mast be secured in position in some way or controlled as fer as possible by the right hand. Each morning when the veapondent wakes the first thing which 1s apparent is likely to be that inert arm. In the bath, at the toilet, at

the diming table, getting into a car or going up or down steps the wenpendavit is a one-armed woman, and indeed in some respects woree. Gia ip mot able with the left arm to wash and dry her right exw end in the absence cof an attendant the left arm has to we vaehed and dried by the other and the respondent would have to attend te washing and drying her whole body with the right arm.

it reqeires ue ieegination to understand her. difficulties in the

_, Sadie sree, om, Fae gihe hee menaged to retaim her privacy. And

theese affaire are the daily reutine and for the most part incepahie ef achievement without the assistance of an attendant. Thies ledy bee in this respect lest her privacy. She 1s never without the weslese left appendage which apart from everything elise is « comtineing and relentless reminder of her deplorable leas ef bodily fwnetion, Mo dowbt injuries may become tolerable wert @ funetional Ghaatlement ef euck consequence must remain a

cane ef cantinmeens and deep distress while she lives.

Bet 19 nOGition te her diffieulties caused by the left arm and heed there are other continuews treubles. She suffered a Treetare of the left ankle. It was put in a plaster cast. In ita 'recevwred' comdition it twists over if it is not held by a caliper with @ ber brace. Ghe has to wear a caliper to be mobile, Beeauas af the ankle and the muscle spasticity of the left leg oe walhke siowly, leaning heavily on her quadrapod, wwingh tie ladt leg though with a stiff knee and tends to veer te the right, Aud af course she can only use one support and ne we frwe ened for a handbag or the like or to give steadiness on etedre er any rough=ess. The danger of her suffering falls ie very real, Ber getting out of e low chair or to negotiate otatre she requires aseistance. She 1s developing restricted shesider jeimt movements with pain if forced beyond her

. vyedtricated recee. In addition, the respondent is now troubled with Deck pein. Shea bes also suffered a left-sided facial Weukewes with severe loss of function, The result of this is tant dering wrery weal she has difficulty im putting food straight inte her weuth, it goes towards the left side and

teare as aiweype feod spilt om the side of her mouth. Her food . Saad eon ap few her. = This is very embarrassing. Her

eran@ehildren eny, 'Grandma, you've got your mouth there', Other cRildren stare at her, and say, 'Grandma what 1s wrong with you - wy metiner bmaxn't got one of those sticks and my

erenden, they Gom't use anything like that either'.

In e@iétien, the reependent suffered brain damage which has affected her eyesight. She has lost peripheral vision in the wright views] field and warked viawal loss on the left side. Weaterer We eecurred has left her in a condition that watching televinion eemees strain, brings on headaches so that she only watches a Little in the day time. She does not read for the come Tegeen, It was also a result of brain damage suffered in the ateigent in whieh she was injured that she developed a temtemsy te epileptic fits. She suffered two very severe fits. Thereafter sive ban been treated with Dilantin which she must teke tree times each day. Dilantin 1s a drug which accumulates am thee Body am@ desage wust be regulated as overdose will intexieste her. If she misses the medication for a day she 1s likely to suffer severe shakes. Even with appropriate Dilantin Gepage she eeffers what are described as minor fits marked by twitching and shaking af the left arm two or three times each

Bevdiesse to aay the respendent suffers great distress of mind. It veemives ne effert to contemplate the anguish of this woman ooh whet is in Aswee is the comparison between her present condition and the woman she vas and would have been but for her injurien. Little wonder that, despite what was described as Ser tunmeniion: eheracter, she suffers depression and repeatedly

bwrealke des in tears for ne apparent reason, It as to be eteerved tint it was the opinian of the learned judge which is critiea; te the assesoment ef such sum as was reasonable to cungenente the reapendent fer injuries having the

and annerding to the rule, as we have stated it, 1t 15 necessary to cepetine whet inferences necessarily arose from the evidence et to the expeneen likely ta be incurred by the respondent becanee oF har Amjwries and their consequences. No doubt in thie ease, if imfiation ia net te be taken into account, the arenaament of $67,000 sheulé provide fer the accommodation and wmraimg gavviess ef the reependent at the present level of service durtmg the bakance cf her life while the nursing home

cemtivess in eperatics and she remains an inmate thereof.

It appears te we that im a case like the present, where the respendent leat ber Imebend in the same accident, 1t is Feasenantle ae between the respondent and the appellant that she aheuld Jive im 2 warsing home. Had she been a little more mebile amd able to tend to her own personal requirements a Gaostiqon weused Merve ariaen a8 to whether the damages payable by the sppetiant eheuld met have been assessed at the costs of meareing, bescau-Keeping and gardening and other necessary eervioes for the respondent at her own home. But reasonable as it ig that the respondent should live in an institution she Spevitebiy wveffers the disadvantages of institutionalised life

ami thig reapendent being particularly dependent upon personal

aerviegng af the institution staff and requiring those services

ae a cundition ef beceming webile and for many other personal needs each day must find herself in a subordimate position, amevitem@dy subject te the availability of others who may be more or ise sempatidle or villing. That thas will involve strains ween the euepemdent's peace of mind and morale 1s not only probebie wet almeet certain. She is almost certain to be unable te omjey tins Company cf her friends and the less of most of them de & very astyeng prokability, In her case institutional life 40 liledy to tmeelve less of dignity, loss of independence, eabattviones ts amthority, the distress of waiting for essential attentian ant the likes. There vill be a substitution of the iseviteniy sal amd sick inmates for the friends she would have hed a8 on active women. Et is reasonable therefore that in her Case wedlea imetiteutienal life is in general unavoidable there aBeulé@ Be regelar and frequent relief from it, Nothing was aedd sbewt ths in evidence but to our minds it follows necesnamily fren vient wee preved. If holidays are not allowed for then the item ef dawages for distress for the mere fact of being centimenusty inetitutienalised acquires another dimension,

3f am attempt ia weds te calculate holidays in money terms it is clear that allowance omst be mace for the accommodation and remmetntion of @ fali-tias attendant of appropriate queliftuntions and fer travel according to specially comfortable Carey gms 1 Xt weuld be apparent to the learned judge that one of thy tepertant coneicerations in this case was the setting apert of the veependent fram her grandchildren, At present,

te thee gremdeitiidren ske is an oddity with a harsh voice, Gave Gee Beet vid) in the verid, she will probably never have

her due respect and affection and share in the life of those grandchildren. This is an item which in our opinion the judge might well hawe considered of great significance in general damage. There is new only one active step in this connection that the respondent can take of her own initiative and that is tc spend mauey end be seen to spend money on those grandchildren. In 2 gnnen vhs wet 'buy' the respect and affection so far as penatble sed the share in their life which she is otherwise desied, Ske wilk meed good clothes and every assistance to offset the yeutitul reaction to Ker crippled state and her @iffioulties st all times. No doubt as time goes these will increase. Persenal emergencies cf a most embarrassing kind must eceuwr frem time to time requiring the attendance of some persoral aseistant. The coat of a personal assistant for attendussce at her grandchildren's school functions and the like will be substantial. Qn any other basis this respondent is likely to be @enied participation in the development of her erandchildren. If it is said that the respondent's daughter- in - law will fi11 the role one has to be realistic and pay regard to the experiemces of life, which are that with all affection, the daughter-in-law will be a busy woman with a life of her own to live and attention to the heavy demands of the respondent

It is useful to comsider the kind of costs which must be thought te be prebable in the maintenance of the respondent's health and in taming these reasonable steps to relieve the continuing

oufferimg to wikich she is condemned. It 1s to be observed that

"There ie ne apecific remedial treatment to assist her.

She is Adbely to develop increasing pain and stiffening

im Nar jeft showlder and possibly other joints of the

left eide which will require drugs and physiotherapy

treetment from time to time. She will require anti-

yeouire cave in the mursing home for the rest of her

Live. Tade will be the major cost involved'. The witreadag hbewe fees are some $9,000 each year so that the statammet tinct thase fees will be the major future cost involved left a large wergin. The learned judge could have validly inteygreted the evidence of Dr. Gillespie as indicating poriediens wimits te the respondent would be necessary for the teat of ber life, It was reasonable for the judge to infer, as we wowkd, thet the condition of the respondent would require thease viatts te be regular and frequent, all the cost of which weuld Be berwe by the respomdent (see ss.21 and 59 of the

The cests of heliguys for the respondent would include the cost eof her own secenmoedation and that of an attendant plus the attendeat''s salary. Moiidays at the rate of say 28 days each your weuld therefore be costly. Of course it may be that @uring the Neliday periods the respondent could obtain some relief foun her veekiy payments to the nursing home. Clearly it is « preper Anference that the respemdient will incur expenses for pleysictharapy end awbulanco expenses that go with it, Ciserly ales the respondent should be entitled to engage comfortable treneport for herself independently of her family for lecal jewrneys at the very least to obtain personal items mnh ne aletithag, te have her hair done, to visit a friend, to go te elewch and to indulge herself by extending some hospitality

By way ef a jedat exoursion with an inmate of the nursing home.

Qn the whete it is evch inmates who are likely to comprise the

Such outings will be costly and having regard to the respondent! lack of webility it weald not be unreasonable that she should percheece © car and incur the inevitable costs of maintaining and svumnieg 1¢ including the coat of engaging a driver on the aeeneions of ite ure. In thie commection, if the words 'nereing Res' are substituted for the word 'hospital' the Seliewing entract frem the jeint judgment of Gibbs and Stephen da. im Seen v- Brome (aupra) at pp.76 and 77 is apposite : 'Prager ellewamee wast of course be made for such of the

rowniaing pleasures of life as money can now afford her; theve ie ne Gowbt that .... her lot can be made much more enjeoynble wy the expenditure ef money and will be watevialiy imgeeved by financial ability to enjoy periodic outings frem beepitai'.

Xt te the cass of course that the payments to the nursing home cover foed and accommodation. It isa to be remembered however that Bad the respondent net been injured she had earning gapacity, if in no other sphere, in that of housekeeper, In this commection is to be ebserved that but for her injuries she would have had the chaice of working in full or receiving a widow's pouston er part ef such @ pension with limited working rights. 3s either event she would have been equipped with food, nocetwedation at am adequate but modest standard of living for vhe rest of her life, In her present condition she has no capacity te werk and with her likely income from her award she Rae wh Rope of the pemaion wetil ehe reaches the age of 70. In additien, im ear view, a voman of the age and with the qualities

ond abtvnntivenses of the respondent could reasonably have

expected te su-warry. Re-marriage would in all probability herce Ween availabie ed she desired it. The financial security

seeeciuate® with marriage cowld well have been quite substantial.

In the alpence of any specific figures which would have enabled the leaweed trie] judge to arrive at a precise amount to cover these Patrure eutgeinge which we are satisfied will be directly elated ta the respondent's injuries the judge, making moderate eatinmates, could well have hed in mind a sum averaging at least $100 yer week for the rest ef her life. To ensure that sum ever ten yeare at 7% would require a capital sum of $37,900. Adding that mm to the special damages and to the capital sum

required te pay fer her ten years in the nursing home the result

But some ef the expenses under consideration might have been jueceped in any event. Algo it is a reasonable view that with respect te the final few years of her life the provision of beard oud ledging isn thea nursing home is a distinct benefit in reepest eof whnkel the appellant cought to be entitled to credit if the shtwation we that at that stage the respondent is not meried end camact earn money. For considerations of this kind we weld tirink that the capital sum in contemplation should

we regmeded ae redecible by say 25% to about $28,000. Looking

at the matter in thie way the sum remaining for compensation for pain, enfferiag, deprivatien, indignity and other disabilities

Ae the Fespendent gets clder some of the expenses envisaged abheva wii} wet be ineurred Wat in all probability other expenses will, euek ap Ter exaeple the engagement of substantially full- Sipe aupticse ef am attendamt or attendants or for nursing.

im tte regurd ber spastic shoulder and back pain are

iid cq tions. The figure get out above is of course not antended te be presine or aceurate but to assess the kind of enpenes whieh the respondent is likely to incur and to be the Rand of expense whieh the judge could have had in his mind in

arriving et this sum fer wrat he called 'general damages for

Gnee it is seen thet there is a substantial capital sum required te earrige the sxpenses referred to then in our opinion whatever might ethervies have been tee case the $70,000 is not seen to be Venkig Geprepertiqnsts to the situation. And in the present cage glhtiongh 11 may appear high it does not, in our view, aaten@d that memgin which is properly within the area of indiwiduel jedicial judguent. In so far as it has been neeeguary in theie case to drew inferences as to possible onpenyes end to wake assessment of them, there is authority for the prepesition that where the evidence does not descend upon partienieors of prebabie amounts of future necessary expenses it

iw Fey the court to make its own assessment, See Luntz on

Sas. .2i,. mens at pp.68-69 amd the cases there cited.

Indeed it seome clear from the reports of cases which have gone em append that jomg-Trenge ferecasts inevitably all involved dedictal processes along these lines. Of course in most cases am initial Sowniation is laid, but at the same time it has been Hecuasety in mewy cases to build upen that initial foundation by a preeese ef the same nature as that which we found necessary %o aept in this case. We doubt if a case is presented to a court in such a way that all that has been proved is the extent of bedily and wental injories and ne evidence is given as to

the caet ef the inevitable expenses which these injuries will neceasitate, the resaponudent may well not receive adequate receugense by wey of compensation. But where the court is able to drew necessary inferences and by exercise of its own knowledge ang aahes cf wederation is able to make the necessary assessment and dees go the respondent should not be deprived of the benefit of that jadicial process unless it appears that the court has qone beyond the wehing cf the inferences and has made the saetnnment on s Prong basis, Thus if ail that was before the court was that the respondent had lost beth his legs it could net be aa34 that e ceurt showld award mothing for the cost of

the igevitable presthesis and all that it involves.

Xt was anid bp Mr. Norris for the appellant that the apparent allowames of same s70,000 fer injury, pain and suffering ought %¢ be emtpered with the allewence of s380,000 which was reduced by the Migh Court to $50,000 in Sharman v. Evans (supra) a tragic ¢maq of a youmg girl ef 20 years of age who was rendered

quadrephegic and epileptic, lost the power of, speech and wettertd svverta weapivatory impairment, who remained aware of

her plight and vas expected to live for 20 or 30 years. Her earnings tnd she net been injured were expected to have been $70 pear week ag a secretary. As to this contention there are various considerations to be taken into account. Farstly, the value of money deteriorated between November 1973, the date of the trial in Mies Sharwan's case, and May 1977, the date of trial in thie case, The C.P.I. figure had risen from 140 to 228 so that the proportionate comparison in round figures is between $86,006 and $130,300 and between $42,000 and $68,400. Secondly, it vas pointed out by Gibbs and Stephen JJ. in Shaveen's. Gage at p.77 that the sum of $80,000 in question Fepresentecd compensation for the aspect of pain, suffering and deprivation of 14fe after all other heads of damage had been provided for at the maximum reasonably assessible in respect thereof, The figure was scrutinized and reduced not so much as an incorrect assesement for the aspect of pain and suffering, if that had atoo@ by itself, but upon a consideration of it in its

In thie case if the itema of medical and other expenses discussed above are proper heads of probable expenses then the $70,000 atands as part cf e total sum where allowance for these expenses

Thirdiy, the approach ty way of comparison is not calculated to Ge juatice in particular cases. Different injuries of different persons give rise to different kinds and degrees of suffering and disability, The considerations leading to assessment of pain and suffering components in respect of a young paraplegic oqo as Mies Shavwan eimply are different from those which apply

im assesaing similar components in respect of a person like the Tesapondexnt .

Im addition te the matters discussed above the following considerations aes relevant. Phe learned judge adopted the gure of Th as the interest rate for his calculation. It is clear feom tie amthevities that a lower figure might quite well Reeve been apprepedate. Then, there can be no guarantee that the nuweing Remwe ia which the respondent is accommodated will semnds fm begdiaeee cr that ita standards will be maintained.

Ym wither of these events the ability of the respondent to ebtatn ts jevel of current services in some suitable location, at the vorvent rete, totally igmoring possible inflation, would be in seriwons Gpybt. In this conmection we have considered the total ewerd of damages ant the income it would be likely to preduce year wy year if invested at interest bearing in mind the

peesibiiity thet ouwh a moans cf testing an award is for the

Penpens given by Ghbte and Stephen JJ. in Shayman v. Evans (aupere) at p.78 hikedy to prove misleading. In the result we afe satiafied that after paying tax on the income from any Siwresteqnte thy vreapendant my maka, no concession being allovebie im vreepest ef har marsing home expenses, that 1t will le mecessary te Grew year by year on the capital sum she receives Wy way «+f Gamagee. Ap etated by Gibbs and Stephen JJ. in Seen a. Sas 61 >. 75 tee wemer in vhich the appellant spends Rey ineawe wel Gemnges is ne concern of the court.

Im the reapendent's future there are many possibilities but

thn et Behablene facter is that the injuries and disabilities

of the reependent can culy become worse. It 4e against that dbadikgrewmal fat ie quard must he seen, One must have regard to wearypmat atditudes te the mutilation of the human body and what we obenres ot te the gprewailing standards of awards in respect of tent sethietten, Weet is required im each case is an award which Sdflests = wennuinke comesption of what is adequate to the edpasion,

We ened'. Gault thet the conception of what was adequate to this cewbatun see puerbabiy iefleqneed by an nesessment by the danse: agp off Che deguee ef pain and suffering associated with the initthh etagee and treatment of her injuries, her subsequent Beskhtovwet wits te tragedy ef the respondent's discovery and equctivnae weedSenitien dering tha last twelve years of her life tt Ried edly kw Beem ee devastatingly injured and her

eerebisehet capastyy fer Tiving so inexorably shattered and the evfert copeivred fer ber te get eut of life that which remains.

lecking MdteSeee wt tie total sum avarded the situation is one im wiiel: iu the werde of Barwiek C.J. (mutatis mitandis) in sion: +. Seong FA ALIR 195 at p.197 we cannot say that we are Ceti Went « edeperiaen of the verdict of the learned trial sedge eab'eikat 42 gene predmce with the full extent of the Presepentvent*s tejevtee and all they involve shows such a Cipregpewhdim that the amount of his verdict is beyond the Limits of & opel aeuwbies of hide divewetion in awarding damages.

the appee}. . I eertity Fit this and tho twmety five

preced> + parogs are @ bran co yee t's Reasons ror Tua, went Worveia of PSS Lou 6 S

Respondent REASONS FOR JUDGMENT CONNOR J. 22 MAY 1978 Canberra

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory (Joske J.) awarding the respondent $156,564 damages for personal injuries. The appellant, who was the defendant below, submitted to interlocutory judgment in default ef defence that the respondent recover against him damages to be assessed. The respondent suffered injury when she was a passenger in a motor car which collided with a motor car driven by the appellant on 18 November 1974. The respondent was then 64 years old. Her husband was killed in the same accident and at the time of the hearing in the Supreme Court in May 1977 she was

Before the accident the uncontradicted evidence was that the respondent was an attractive energetic woman, very much interested in her house and garden, actively interested in church work, a person who went on frequent outings with her husband and who was keenly interested in her grandchildren. The photograph, exhibit G, which is reproduced on p.80 of the Appeal Book resembles her appearance before the accident.

As a direct result of the accident the respondent suffered a number of serious, disabling and distressing injuries. She suffered diffuse damage to the brain and for a long time after the accident she had no speech function at all. Because of raised pressure in the inter-cranial cavity there was damage to the optic nerve. She consequently suffers from permanent loss of part of her visual field. Because of this and because of the onset of headaches when she does so, she cannot read very much or look at television for very long.

Whilst in hospital following her injury the plaintiff had a number of convulsive seizures. At the end of 1975 she had @ severe major seizure. In this connection she takes Dilantin.

At one stage of her management she suffered from Dilantin intoxication resulting in drowsiness and increased immobility. This has resolved but she still suffers minor motor seizures two or three times per week in the form of twitching and shaking of her left arm. These are likely to continue but it is unlikely that she will shtfer severe epilepsy. Her brain damage caused a left sided hemi-paresis. Her left arm is useless and the paresis affects her left leg. In addition there was a fracture of the left shoulder which has resolved but without enabling any use to be made of the left arm because of the paresis. The fracture,

At a glance

Court

Decision date

Before

Source

Judgment (236 paragraphs)

Cases Cited (2)

Cited By (2)