Manning v State of NSW

Civil Liability Act 2002 Disability Services Act 1993 LEGISLATION CITED : Mental Health Act 1990 Motor Accidents Act 1988

"Assessment of Damages for Personal Injury and Death" Luntz 4th ed Del Ponte v Del Ponte (1987) 11 NSWLR 498 Dell v Dalton (1991) 23 NSWLR 528 Geaghan v D'Aubert [2002] NSWCA 260 Graham v Baker (1961) 106 CLR 340 Griffith v Kerkemeyer (1977) 139 CLR 161 Haines v Bendall (1991) 172 CLR 60 at 63 Hornsby Shire Council v King [2005] NSWCA 67 Juranovich v McMahon (1961) NSWR 190 K-Mart Australia v McCann [2004] NSWCA 283 Malec v JD Hutton (1990) 169 CLR 638 CASES CITED : Manser v Spry (1994) 181 CLR 428 Marsland v Andjelic No 1 (1993) 31 NSWLR 162 National Insurance Company of New Zealand Limited v Espagne (1960-1961) 105 CLR 569 Nicholson v Nicholson (1994) 35 NSWLR 308 Paff v Speed (1961) 105 CLR 549 Penrith City Council v Parks [2004] NSWCA 201 Redding v Lee (1983) 151 CLR 117 Skelton v Collins (1966) 115 CLR 94 Thatcher v Charles (1961) 104 CLR 57 The Nominal Defendant v Lane [2004] NSWCA 405 Treloar v Wickham (1961) 105 CLR 102 Willett v Futcher [2005] HCA 47

PARTIES : Robert Gregory Manning by his tutor Christine Maynard v State of New South Wales

D Nock SC/P Kirby - Plaintiff COUNSEL : JE Maconachie QC/P Sternberg - Defendant

Greg Tyler & Associaties - Plaintiff SOLICITORS : I V Knight, Crown Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20337/03 - Robert Gregory MANNING by his tutor Christine MAYNARD v STATE OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: On 5 June 2002 the plaintiff was a prisoner in the custody and control of the Department of Corrective Services in the Cessnock Correctional Centre. The plaintiff's imprisonment was due to a breach by him of an apprehended violence order taken out by his mother. 2 On 5 June 2002 the plaintiff was savagely beaten by another prisoner who had been placed in the cell with him. The plaintiff was twenty-nine. As a result of the attack the plaintiff suffered very serious injuries including brain damage. 3 The defendant has admitted breach of duty of care. The matter has come before the court for the assessment of damages. The assessment is complicated by the fact that at the time of the attack the plaintiff suffered from schizophrenia and was abusing alcohol and cannabis. It is common ground that the entitlement to damages is governed by the Civil Liability Act 2002 (the Act).

Factual background 4 The plaintiff was not present in court and did not give evidence. The evidence of his background came from his mother (Mrs Maynard) and from the records of the John Fletcher Hospital. This hospital is a psychiatric facility operated by the Hunter Health Service. On a number of issues the recollection of Mrs Maynard was not particularly good. Where there is a conflict between her recollection and the notes of the James Fletcher Hospital, I prefer to rely upon the notes. Despite these inaccuracies, I formed the opinion that Mrs Maynard was doing her best to provide honest and accurate evidence. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs. 5 The plaintiff was born on 3 April 1973 and was the eldest of three children. He resided in the Newcastle area and attended Gateshead High School. The plaintiff seems to have been prone to serious temper outbursts from a young age. He completed Year 11 in 1989 and then left school. During 1990 he substantially completed a Vehicle Trades Pre-apprenticeship course at TAFE. In 1991 he completed a Multi-skilled Trades Assistants' Course and a course in Industrial Painting at TAFE. He did not perform any paid work. 6 The plaintiff's biological father and his mother separated in 1981. The marriage broke up because the plaintiff's father was a chronic alcoholic who also abused other substances. After the separation his father maintained contact with the plaintiff but because of his father's problems, access was always strictly supervised. 7 The plaintiff was described by his mother as a quiet and lonely child who did not mix well and did not have many friends. He did reasonably well at school and used to read a lot. From 1990 the plaintiff steadily increased his consumption of alcohol with the pattern being one of intermittent binge drinking. He remained unemployed. 8 The plaintiff first came in contact with the James Fletcher Hospital in December 1994. By that time his problems with alcohol abuse were well established. His mother had taken out an apprehended violence order (AVO) against him which he had breached on two occasions. The plaintiff was complaining of depression and anxiety. He often felt angry and had suicidal thoughts. In June 1994 he had tried to take his life by drinking a bottle of Ventolin Nebuliser mixture. The plaintiff was referred to and completed a two-week alcohol abuse program, although on New Year's Eve of that year while attending the program, he had engaged in an episode of binge drinking. The plaintiff said that he wanted to overcome his alcohol abuse problems. 9 In March 1996 the plaintiff was referred to the James Fletcher Hospital by a magistrate before whom he had appeared for another breach of the AVO. The plaintiff continued to engage in episodes of binge drinking. He gave a history of an uncontrollable temper since he was a small child. Drinking made his temper episodes worse. He was assessed as having a dependence on alcohol with other underlying problems which were not specified. Once again he attended a two-week alcohol abuse course. The records of subsequent attendances at the hospital in April and May 1996 make it clear that his alcohol abuse was continuing despite the course. 10 In relation to the AVOs it was the evidence of Mrs Maynard that when the plaintiff was drinking he became argumentative and abusive and it was for this reason that she obtained the AVOs. When the plaintiff was drinking she would not allow him into the house. He would then stand in the street outside the house shouting abuse. On most occasions if she ignored him he would go away after an hour. On other occasions it was necessary to call the police to have him removed. It was her evidence that when he was not drinking or otherwise intoxicated, the plaintiff's conduct was quite reasonable and she had no objection to him coming into the house. 11 On 29 July 1996 the plaintiff attended the James Fletcher Hospital with his mother following another breach of the AVO. He complained that his mind was scrambled. Over the preceding three to four years he had had strange thoughts and "weird experiences". Over that same period he had been abusing alcohol, on occasions drinking twenty-four cans of beer. When that occurred he would stop eating for days on end. His depression and strange thoughts were made worse by his alcohol abuse. He was experiencing paranoid feelings and thought that people were trying to harm him. He was experiencing delusions and thought that he was involved in a fight between himself, the devil and God. He was hearing voices which told him to harm people and was receiving messages from the radio. He was assessed as suffering from alcohol abuse with an underlying psychotic process. 12 On 12 April 1997 the plaintiff was referred to the hospital by the Charlestown Police. By this time the plaintiff had been diagnosed with schizophrenia. The police had been called to the plaintiff's home where he was asking one of his sisters to get a knife so he could cut his wrists. The plaintiff was talking about killing himself and killing others. He was still engaging in alcohol abuse whenever he had sufficient money. He was also abusing cannabis. He complained of chronic feelings of hopelessness, poor sleep and loss of appetite. He was not admitted to the hospital on this occasion. 13 In April 2000 the plaintiff was brought to the hospital by police pursuant to a Court order. He had been arrested for breaching an AVO taken out by his mother. At this time the plaintiff was still abusing alcohol and cannabis. The use of cannabis was heavy (ten cones per day). He was hearing lots of voices inside his head. He was depressed and was thinking about suicide. He did not think that his substance abuse was too much of a problem. He was assessed as addicted to alcohol and cannabis with no insight into his problems. 14 The plaintiff attended the hospital on 29 June 2000. He was hearing voices in his head, some of which inspired him and some of which put him down. He was experiencing panic attacks. He felt people were talking about him behind his back. He continued to drink heavily and to abuse cannabis. In addition he had commenced using LSD and heroin. He had used LSD twenty to thirty times in the preceding six months and heroin on four occasions during the preceding four months. He had been living on his own during that four-month period. 15 There were further admissions to the hospital in October, November and December 2000. The history on each occasion was generally the same. He was experiencing auditory hallucinations and feelings of paranoia. He had mood swings from agitation to calmness. He was continuing to engage in binge drinking when he had sufficient money. He was continuing to abuse cannabis and LSD with fifteen trips in one month. His psychotic symptoms increased significantly when he was intoxicated by either alcohol or cannabis. 16 His admission in November was due to an altercation with his stepfather. The plaintiff was intoxicated and was abusing his mother which led to his stepfather's intervention. The police were called. He was arrested for being in breach of an AVO and was taken to the hospital. 17 On 10 December 2000 the plaintiff presented to the police and asked to be taken to the hospital. He was confused. He complained of thinking of suicide the preceding night. He was experiencing auditory hallucinations. He was continuing to abuse both alcohol and cannabis. 18 In January 2001 the plaintiff presented to the hospital seeking admission. In April he was brought in by police at his own request. He had that day told police that he had committed a murder. Hospital staff were told that he had been kicked out of his accommodation the day before. He was continuing to experience auditory hallucinations. He was assessed as having both suicidal and homicidal ideation. 19 It seems clear that from April 2001 until he was attacked the plaintiff was living on the streets. On occasions he obtained hostel accommodation but this was sporadic. His substance abuse was escalating. On 7 November 2001 he was referred to the hospital by a Ms Wild who was a psychologist working with the Charlestown Mental Health team. He had been found that day lying on his mother's laundry floor in a foetal position. He was psychotic. He had been drinking and not eating and was in an emaciated condition. It is not clear whether he was admitted on this occasion. 20 On 19 November 2001 the plaintiff presented to the hospital and sought to be admitted. He was trying to gain admission to a Salvation Army hostel but needed a medical certificate from a psychiatrist clearing him of any psychiatric illness. Such a certificate was not provided. 21 On 29 December 2001 the plaintiff was admitted to the hospital after having been found unconscious behind a hotel in Charlestown. He had apparently consumed 750 ml of methylated spirits in an attempt at self-harm. He was expressing suicidal thoughts. He believed that people were planting voices in his head. He thought he was controlled by an inexplicable outside force. 22 Although he was discharged on 30 December 2001, the plaintiff appears to have attended the hospital every day between 31 December and 4 January 2002. On that latter date he left the hospital to get his pension. Later that night the hospital was advised that the plaintiff had been admitted to the Belmont Hospital in an intoxicated state and was on an intravenous drip. 23 The last entry in the James Fletcher Hospital notes before the attack is 3 April 2002. The plaintiff had been in custody for breach of an AVO until 27 March when he was released on bail. It was a bail condition that he attend a rehabilitation course at Endeavour Farm. The plaintiff failed to attend the rehabilitation course and had been arrested by police in an intoxicated state after going to his mother's place in further breach of the AVO. He was due to be dealt with by the Local Court on 4 April 2002 for his various breaches of the AVO taken out by his mother. 24 On this occasion he told the hospital that his thoughts of suicide were getting out of control. He would have no accommodation when he was released from gaol. His only contact with his family was with his mother and this contact was limited to phone calls because of the AVO. He complained that "can't clear my head", "mind unwell", "freaking out" and "delirious". The hospital assessed him as chronically addicted to cannabis and alcohol and as suffering from depressive symptoms. It was thought his behaviour was schizotypal. The hospital was not prepared to certify the plaintiff as mentally ill under the Mental Health Act. 25 The period between 1994 when the plaintiff first attended the James Fletcher Hospital and April 2002 indicates an increasing level of substance abuse. This substance abuse was either contributed to or complicated by the plaintiff's underlying schizophrenic condition. The schizophrenia condition had been diagnosed when the plaintiff was in his early twenties. Thereafter the plaintiff attended the Charlestown Mental Health Unit for the treatment of his schizophrenia but it is clear that such attendances were not regular and that the plaintiff did not take his prescribed medication. No material was placed before the Court from the Charlestown Mental Health Unit. Accordingly, the way in which his schizophrenia developed, the nature of the treatment offered to him and the medication prescribed from time to time is not known. No material from the family GP, Dr Longbottom, was produced. 26 At no time between when he left school in 1989 and when the attack occurred, did the plaintiff engage in paid employment. He never obtained a driver's licence. For two days a week during 1999 the plaintiff did some volunteer work with the Salvation Army. That work included cleaning, vacuuming and sorting clothes. 27 After the attack on 5 June 2002 the plaintiff was found unconscious in his cell with severe head and facial injuries. The injuries included diffuse brain injury, left frontal lobe haemorrhages, some temporal lobe and generalised swelling and frontal extradural haemorrhages. He also sustained multiple facial bone fractures and an undisplaced fracture of the C5 and C7 spinous process. His injuries were severe requiring a tracheostomy, PEG feeds and ophthalmology review of a right corneal ulcer, right lower lid entropion and lateral tarsorraphy. He was an in-patient of the John Hunter Hospital for one month and thereafter was managed in the Rankin Park Rehabilitation Unit for a further ten months. He was discharged from that unit into a group home run by New Horizons Enterprises Limited (New Horizons) on 15 April 2003. 28 The plaintiff has been left with the following disabilities. He has severely slurred speech with very restricted lip, tongue and jaw movement when speaking. His verbal output is limited and he does not say much more than "yes" and "no". He does not initiate interaction and rarely initiates conversation. He generally responds to questions with single word responses, largely unintelligible, especially to outside people. CT scans of the brain show mild cerebral atrophy and a right frontal craniotomy. 29 He is continent of both urine and faeces and can move with the assistance of a walker. He can go upstairs with a rail and assistance. He is largely self-caring although he does require supervision and occasional assistance in activities of daily living. Although he is independently mobile he lacks the motivation to move. He spends most of his day sitting in a chair. He can feed himself if the meals are prepared by others. He requires assistance with showering and dressing mainly due to lack of motivation. 30 The plaintiff's physical disabilities are permanent and are unlikely to improve. His schizophrenia is currently controlled as well as can be judged from his responses. His depression is also controlled. 31 In relation to nursing/domestic assistance the evidence is that the plaintiff requires supervision and assistance in showering, cooking meals, mobilisation and motivation. This situation will continue for the rest of his life. It was agreed between the parties that the plaintiff is now totally incapacitated for employment and that he requires substantial care together with twenty-four hour supervision. 32 The plaintiff continues to reside in the group home with six other males who also have disabilities. New Horizons, which runs the group home, is a non-profit organisation, which received some funding from the NSW Government. New Horizons provides twenty-four hour care for the occupants of the home. 33 It was the evidence of Mrs Maynard that after the plaintiff was moved to Rankin Park she would attend every day. She would get him out of bed if he needed to go to the toilet, would help put him into a wheelchair and if he wanted to she would take him out for a cup of coffee or take him out for a walk in the grounds. After a period of time which was not specified, she reduced her visits to three times per week. 34 After the plaintiff's move to the group home, his mother continued to visit him at that location. Her evidence was that on occasions he would be taken home on weekends. On other occasions he would be taken out for a drive. When at home all his needs would be met by his mother or his stepfather. The plaintiff has been taken on outings to Nelsons Bay, The Entrance and Raymond Terrace. He has also been taken to rugby league football matches by his mother. The plaintiff enjoys these home visits and outings. Exhibit C was a schedule of visits for the period 10 September 2003 until 23 July 2005 which was kept by New Horizons.

Assessment of damages 35 Most heads of damage were contested. The only items agreed were past out-of-pocket expenses of $4,000 and that the plaintiff had no entitlement to damages for past economic loss. The life expectancy of the plaintiff was agreed at 46.4 years (5% multiplier 958). For the past the prescribed hourly rate for gratuitous domestic assistance under the Act was agreed at $19.60 per hour and for the future at $19.84. It was agreed that the question of funds management and the application of Willett v Futcher [2005] HCA 47 should be dealt with separately and should await the assessment of the other heads of damage.

Non-economic loss 36 The maximum amount for a most extreme case under the Act as of the date of judgment is $400,000. 37 On behalf of the plaintiff it was submitted that because of the serious injuries which he had suffered in the attack and because of the serious and permanent disabilities which had been caused by it, he was entitled to damages for non-economic loss at a level close to "a most extreme case". A proportion of 90% was put. 38 On behalf of the defendant it was submitted that there was no evidence that the plaintiff following the attack had an appreciation of any change in circumstances, of suffering pain or of suffering a loss of amenity. There was no assessment of him which identified any awareness on his part or appreciation of those matters. Accordingly the principle in Skelton v Collins (1966) 115 CLR 94 ought apply and the plaintiff's entitlement to non-economic loss should be assessed on a similar basis, ie nominal damages only. 39 The defendant accepted that, objectively, the plaintiff's present circumstances were pitiful. The submission was that, subjectively, he had no appreciation of the circumstances in which he now found himself nor was he able to compare his present circumstances with those which had obtained before the attack. 40 The defendant emphasised that damages for pain and suffering related only to the subjective feelings of the plaintiff and that it was what the plaintiff has felt and suffered, or continues to feel and suffer, which must inform the assessment of damages for non-economic loss. 41 The defendant accepted that there was some objective element in the concept of loss of amenities or loss of enjoyment of life, although that assessment also involved an essentially subjective enquiry as to the effect on the particular plaintiff. The defendant submitted that the plaintiff's quality of life before the attack was so devoid of content that the plaintiff had lost little by comparison with his present circumstances. In any event the objective element when considering loss of amenities ought be given minimal weight. (Skelton v Collins.) 42 Section 3 of the Act defines non-economic loss: "Non-economic loss means any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement." 43 Section 16 provides for the determination of damages for non-economic loss: "16(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case. (2) The maximum amount of damages that may be awarded for non-economic loss is [$400,000], but the maximum amount is to be awarded only in a most extreme case. (3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table: (4) An amount determined in accordance with subs (3) is to be rounded to the nearest $500." 44 Section 17A provides for tariff damages for non-economic loss. "17A(1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings. (2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non-economic loss in those earlier decisions. (3) This section does not alter the rules for the determination of other damages." 45 It has been held that a similar provision in the Motor Accidents Act 1988 (NSW) did not fundamentally alter the common law concept of general damages. (Dell v Dalton (1991) 23 NSWLR 528.) Sections 3 and 16 of the Act have been given similar application (Penrith City Council v Parks [2004] NSWCA 201): "39 The concept of a most extreme case has been addressed under legislation prior to the Civil Liability Act. In Dell v Dalton (1991) 23 NSWLR 528 Handley JA observed that in the Motor Accidents Act 1988 (NSW) "a most extreme case" is not the subject of any statutory definition and the words have no technical legal significance. The debate in that case concerned whether a nineteen year old made a paraplegic as a result of a motorcar accident should be determined to be a most extreme case.

"I do not accept the view that a plaintiff who has suffered no or minimal loss of expectation of life or no or minimal disfigurement cannot, as a matter of law, constitute 'a most extreme case'. Mr Donohoe's submission tacitly assumes that losses within each of the categories are equivalent or commensurable and that similar injuries will result in similar losses for all individuals. This was not so under the old law and I can see no reason for holding that the Act has altered the law in this respect. It is not unusual for a quadriplegic or paraplegic to suffer only a modest loss of expectation of life. Moreover while a quadriplegic or paraplegic will have suffered disfigurement at least in the shape and appearance of their paralysed lower limbs, such persons may not suffer any facial disfigurement as a result of their injuries. On the other hand a plaintiff who continues to experience extreme pain and suffering may find release in premature death. In such a case a diminished life expectancy may actually reduce the overall non-economic loss. The facts in Skelton v Collins (1966) 115 CLR 94, where the plaintiff was rendered permanently unconscious by his injuries and had a greatly reduced life expectancy, provide a graphic illustration of the fact that extreme loss in two of the categories can mitigate rather than aggravate the injured person's overall non-economic loss. Such a plaintiff would not constitute a most extreme case.

The trial judge referred to the previous law in this respect and quoted a sentence from the judgment of Windeyer J in Thatcher v Charles (1961) 104 CLR 57 at 71. This was a dissenting judgment but the passage in which the sentence appeared accurately reflected the previous law and merits quotation in full. The judge said (at 71-72): '… In theory it might seem that the most serious physical injuries should always attract the heaviest damages. Therefore it is sometimes suggested that damages given in cases of paraplegia should be regarded as at the top of a scale and used as a basis for other estimations. But that involves an erroneous hypothesis. Compensable loss depends not only on the severity of the physical injury but also on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious in principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables. The law insists that it be done, but can give no sure guidance on how it is to be done.' " (McClellan AJA) 46 Fundamental to the defendant's submission is the proposition that there is no evidence capable of satisfying the Court that the plaintiff had any real appreciation of pain and suffering and loss of amenities of life, in particular what he had lost. Criticism was leveled at the case presented on behalf of the plaintiff on the basis that the plaintiff should have been called and an attempt made to elicit evidence from him. I do not agree with that criticism. Apart from the considerable inconvenience to the plaintiff in his injured state, it was noted by Professor Jones that his soft dysarthic speech pattern made history taking from him impossible in many respects. I do not believe I would have been assisted by the presence of the plaintiff. 47 What the evidence reveals is that the plaintiff has a reduced appreciation of pain and suffering and what he has lost. It does not go so far as to establish that he has no such appreciation. 48 Doctor Gilandas, a psychologist, made this assessment in March 2004: "1. Unable to walk with a four-legged walking frame due to extreme physical restrictions. 2. Difficulty in talking and unable to express himself with others. Only his family have learned to interpret and understand him to some extent. He is virtually cut off from others and "locked into" his own world. Professionals who work with Robert have to speak very clearly and slowly and he communicates with a "yes" or "no". 3. Impairment of memory and concentration. His mother says that he repeats himself. 4. Unable to engage in the activities of daily living. He needs help with showering, shaving and toiletry. He is unable to prepare his own meals but he can slowly feed himself. He cannot live at home and requires 24 hour care in a group support home." 49 Neuropsychological testing assessed him in the mentally retarded range as to his IQ, although he retained reading skills. In relation to his appreciation of his condition, Dr Gilandas said: "He lacks insight and judgment re the extent of his deteriorated state and thus is merely mildly depressed." 50 The evidence of his mother was that the plaintiff became very frustrated when trying to communicate with her and others because of his inability to find appropriate language. There was also evidence of the plaintiff becoming angry with his mother and seeking to avoid her. These reactions, when taken with his reduced IQ, would indicate some appreciation of what he has lost. 51 The plaintiff says that he does remember that he was assaulted. The extent of that recollection was not expanded on. Nevertheless, the sheer extent of the injuries suffered by him can only be consistent with a savage and sustained beating. Although there was no specific evidence as to what the plaintiff experienced at that time, it can be inferred that the pain must have been significant. Such an approach is consistent with that approved in Del Ponte v Del Ponte (1987) 11 NSWLR 498 at 502-503 in relation to the assessment of pain and suffering and loss of enjoyment of life in children who suffer such injuries at an early age and are consequently unable to give evidence concerning what they have experienced. 52 Every time the plaintiff moves with his restricted ability to ambulate, he would be reminded of his physical restrictions even though that appreciation is not complete. The plaintiff would be similarly reminded every time he tries to speak. There is evidence of impulsive behaviour on the part of the plaintiff leading to falls and injuries sustained in falls, albeit such injuries were not serious consisting of such things as a lacerated elbow and the like. These are matters which can be properly taken into account under pain and suffering and loss of enjoyment of life. 53 The observations of Professor Jones in May 2004 provide a useful picture of the plaintiff: "I found Robert Manning to be a severely impaired thirty-one year old man who related pleasantly but superficially to this referee. His face expressed little emotion and he stared somewhat blankly around the room or at the examiner. He attempted to answer various questions and some of the responses were understood, although he had a soft dysarthric speech pattern which made history taking from him impossible to the extent of the above information. He recalled the first name, surname and title of the examiner and did not know the location. He correctly recalled the month, date and year. Attempts to recite the months of the year in retrograde order started well, slowed, and was then abandoned after four months. He could not provide a serial 7's response and his ability to calculate change was inconsistent and occasionally flawed. He could not recall any recent current affairs. He knew the name of the prime minister of Australia, but not the premier of New South Wales and he correctly identified the President of the United States. When asked about events in Iraq he said that he did know. Perceptual tests were substantially impaired although he could draw a person but with an ataxic pattern of movement and he had difficulty holding a pencil. Fine movements and patting movements were poor and there seemed to be in addition to an upper motor neuron syndrome, dyspraxia for physical function. The right finger nose test was normal but he seemed incapable of undertaking that on the left although power seemed close to equal bilaterally. He said that he could smell eucalyptus but did not know what it was and could smell lavender but again could not identify it. He spoke with a very dysarthric speech pattern, could read a printed passage but was unable to interpret it. One noted that he also used an alphabet board and phrase board to communicate with others. He walked with a slow shuffling gait in a walking frame. Upon his departure he retrieved an open can of coca-cola from the waiting room bench indicative of the fact that he had recalled having left it there." 54 I have concluded that the plaintiff certainly has a reduced appreciation of his pain and suffering and a reduced appreciation of those physical faculties and mental faculties which he previously had but which now he has lost. His situation is similar to but not identical with the injuries under consideration in Marsland v Andjelic No 1 (1993) 31 NSWLR 162. In that case the brain-damaged plaintiff had retained sufficient cognitive function so as to afford him some insight into the extent of his injuries and consequent disabilities. Nevertheless, this was said of him: "Tragically, the appellant denied that he was brain damaged. He had maintained that he was more independent and employable than any view of the evidence would support. The appellant had undoubtedly permanent frontal lobe impairment. This affected his impulse control reality, insight and judgment. He also had problems in planning, verbal fluency, high level reasoning, abstraction skills, cognitive flexibility and utilization of error information." (p169D) 55 Despite that plaintiff's restricted insight and appreciation of his disabilities, the Court of Appeal had little difficulty in assessing his damages as for a most extreme case under the Motor Accidents Act 1988. Section 17A of the Act authorises this Court to have regard to the reasoning process in other cases if not to the assessment of damages in those cases. It seems to me that a similar approach to that followed in Marsland No 1 is open in this case. 56 I am also not persuaded by the defendant's submission that an assessment of non-economic loss is essentially a subjective exercise and that objective considerations should be given only minimal weight. That was certainly the situation under the common law. Under the Act, however, courts are required by s16 to follow a methodology of assessment which of necessity involves reference to a table specifying percentages and which implicitly invites a comparison with other similar injuries. In my opinion that approach injects an additional element of objectivity into the assessment of non-economic loss under the Act which was absent from the common law as considered in such cases as Skelton v Collins. The reference in s17A to a comparison with other cases confirms that greater weight is required to be given to the objective seriousness of injuries under the Act than under the common law. Nevertheless I accept the main thrust of the defendant's submission that the subjective effect on each individual of his or her injuries remains the major determinant of the entitlement to damages for non-economic loss under the Act. 57 Taking those matters into consideration I am of the opinion that the plaintiff's entitlement to damages for non-economic loss is much greater than that submitted on behalf of the defendant and goes well beyond a mere nominal assessment. I agree that the plaintiff's reduced appreciation of what he has suffered and what he has lost is a factor to be properly taken into account in reducing the extent of the plaintiff's entitlement to non-economic loss. Nevertheless, there is sufficient evidence to satisfy me that not only has the plaintiff suffered major and significant injuries in an objective sense but that he has some real appreciation, albeit not a complete appreciation, of his injuries and what he has lost. As indicated, every time he eats or seeks to ambulate he is reminded of his disabilities. I would assess the plaintiff's entitlement to non-economic loss at 80% of a most extreme case, ie $320,000.

Loss of earning capacity 58 The submissions on behalf of the plaintiff under this heading adopted a pragmatic approach. The Court was invited to assess the plaintiff's entitlement on the basis of a lost opportunity to engage in employment over the next thirty-three years. A figure of $68,000 was suggested. Reliance was placed on the evidence of the plaintiff's mother that: "The week before I seen him before he was bashed, he was clearly depressed and he just said to me, the last thing he said to me was "Mum, I'm going to change" and I said "Well, if you change you can come back home"." 59 The defendant submitted that at the time when he was injured the plaintiff in fact had no earning capacity to lose. This was due to his pre-existing schizophrenia, his substance abuse, his lack of a work history and his lack of work skills. His inability to cope with work before the attack can be seen from his inability to manage and retain his Housing Commission accommodation. Alternatively, the defendant submitted that there was no evidence that uninjured the plaintiff would have utilized any earning capacity that he retained. 60 Section 13 of the Act does provide some difficulties in interpretation. Guidance as to that interpretation has been provided by a series of Court of Appeal decisions (Penrith City Council v Parks [2004] NSWCA 201, K-Mart Australia v McCann [2004] NSWCA 283, The Nominal Defendant v Lane [2004] NSWCA 405 and Hornsby Shire Council v King [2005] NSWCA 67). The effect of those decisions is that a court can have regard to positive vicissitudes when assessing future loss of earning capacity and that in certain circumstances a financial buffer or cushion can be awarded under the section. 61 In this case the first enquiry which must be made is "the most likely future circumstances" of the plaintiff "but for the injury". I am of the opinion that had this injury not occurred, the plaintiff would not have found any employment but would have remained unemployed to age sixty-five or until ill-health and the effects of his substance abuse made it impossible for him to work. 62 The period between 1989 and the date of the attack represented the best chance of the plaintiff ever finding work. He had completed some courses of study after leaving school which would have provided a basis for obtaining employment. His substance abuse was only then beginning and had not become as entrenched as at the time of the attack. It also seems that his schizophrenia was not as florid then as it later became. Despite those positive considerations, the plaintiff did not obtain employment between 1989 and the date of the attack. Given the escalation in his substance abuse and the uncontrolled nature of his schizophrenia, I am of the opinion that it was most unlikely that the plaintiff would have obtained any employment in the future had he not been attacked. 63 His comment to his mother whilst in gaol that he was going to change was no doubt honestly made at the time but is of little weight in the context of this case. The notes from the James Fletcher Hospital record on a number of occasions such wishes to change his behaviour all of which came to nothing. There is nothing to persuade me that this comment to his mother should be given any greater force than those earlier comments. 64 Although I am of the opinion that it was most unlikely that the plaintiff would have obtained any employment even if he had not been attacked, s13(2) of the Act requires me to consider the percentages of that scenario occurring. Put another way, was there a chance of the plaintiff actually changing his behaviour and obtaining employment and if so, what percentage should be awarded in relation to that chance. 65 Apart from the statement made to his mother in prison shortly before the attack, there is simply no evidence to indicate any real chance in a Malec v JD Hutton (1990) 169 CLR 638 sense, that the plaintiff might, uninjured, have obtained work. As was submitted by the defendant, his capacity to work as of the date of the attack had already been significantly reduced. I find that there was no realistic chance that uninjured the plaintiff would have used his residual earning capacity to obtain paid employment in the future. I am not prepared to award any damages for loss of earning capacity.

Future medical expenses 66 This head of damages was challenged by the defendant but nothing was put to indicate that the amounts claimed by the plaintiff were unreasonable. I accept that, uninjured, the plaintiff would have had a need to attend medical practitioners for his schizophrenia, and also for his substance abuse, although the likelihood of him doing so on any regular or consistent basis was low. What is equally clear is that additional disabilities have been created by the attack which are solely referable to the attack and which require treatment. Given the severity of the plaintiff's disabilities the amount claimed of $23 per week seems quite modest and I propose to allow it. Accordingly I award in favour of the plaintiff $22,034 for future medical expenses.

Care and assistance 67 The plaintiff's claim under this heading comprises two parts. The first is for gratuitous assistance provided by the plaintiff's mother and his stepfather while he was in Rankin Park and while he has been in the group house. The second relates to the need for accommodation, care and twenty-four hour supervision which is currently provided in the group house by New Horizons.

Gratuitous attendant care services 68 The plaintiff's claim under this subheading also comprises two parts. The first relates to the services provided for the plaintiff by his mother when she used attend the Rankin Park Rehabilitation Centre. Those services consisted of getting him out of bed, assisting him in and out of his wheelchair and taking him for a cup of coffee. On occasions she would take the plaintiff around the grounds for a few hours. Under cross-examination she agreed that there were nurses and wardsmen at Rankin Park who looked after all of the plaintiff's needs and performed those functions described by her when she was not there. 69 The claim is for 20 hours per week of attendant care services for 40 weeks in respect of the period when the plaintiff was at Rankin Park. 70 The defendant disputes the claim. It argues that although the services may relate to nursing, there was no reasonable need for those services. The defendant submits that had the plaintiff's mother not performed the services, they would have been performed in any event by the staff who were available. 71 I agree with the submission on behalf of the defendant and I reject that part of the plaintiff's claim for gratuitous attendant care services. 72 Damages for gratuitous attendant care services are dealt with by s15 of the Act. "15(1) In this section - Attendant care services means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury; Gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. 15(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) There is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. 15(3) Further no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided: (a) For less than six hours per week, and (b) for less than six months…." 73 The cases draw a clear contrast between the sort of services which are reasonably necessary for a person who is an inpatient in hospital and those which are not. In Marsland v Andjelic No 1 it was stated: "There is no doubt that the amount of care provided by the hospital staff will affect what amount or what value of compensable services can be successfully recovered. In another case, attendance by a parent at a hospital might be of insufficient duration or of a nature inappropriate to give rise to a successful claim. It is correct to note, as the Master did, that hospital visits as such may not in particular cases be regarded as compensable services. However, in this case it was found by the Master that the appellant's mother attended hospital for between six and eight hours a day after the appellant's admission. From November 1987 she became closely and actively involved in his therapy. To an unspecified extent she was involved in his physical and speech therapy. In addition the Master found that, from the time of the accident, the appellant's mother had devoted much of her time and effort to the welfare of her son." 74 In Nicholson v Nicholson (1994) 35 NSWLR 308 it was stated: "Section 72 itself refers exclusively to services of a domestic and nursing nature. The services performed by the appellant's sister, which certainly helped improve his level of comfort, could not be classified as fulfilling a relevant "need" in view of the fact that the appellant was already enjoying fulltime hospitalisation. Although it may not be realistic to expect the nursing staff at all times to apply the creams to the appellant, the respondent already bears the burden of providing compensation for the costs of hospitalisation. I do not believe that it should be required to compensate the appellant's sister as well for their minor activities. Her Honour was entitled to find that the appellant's sister's services did not represent services within Griffith v Kerkemeyer." 75 The sort of services provided for the plaintiff by his mother whilst at Rankin Park were of the sort described in Nicholson v Nicholson and accordingly the claim for damages for those services pursuant to s15 of the Act should be rejected. 76 The second part of the plaintiff's claim for gratuitous attendant care services relates to services provided by the plaintiff's mother, and to a lesser extent by his stepfather, after he transferred to the group home conducted by New Horizons. 77 The evidence of Mrs Maynard was that from 15 April 2003 onwards she would take the plaintiff home on weekends and there she and her husband would look after him. On other occasions she and her husband would take him out for a drive during the day. The plaintiff's mother estimated that he would be taken home for weekends at least once a month, otherwise he was taken out once a week on either a Saturday or a Sunday. The claim by the plaintiff for this period was 16 hours per week from 15 April 2003 until the date of judgment. A claim on the same basis was made in relation to the future. 78 The defendant challenged this claim for gratuitous attendant care services on two bases. The defendant disputed that such outings constituted attendant care services and also disputed the frequency with which those services were provided. In relation to that latter point the defendant relied upon Exhibit C, being the schedule of visits maintained by New Horizons. Exhibit C it was submitted did not show services being provided at anything like the rate of 16 hours per week. In relation to the claim for the future, the defendant submitted that due allowance had to be made for the age of the plaintiff's mother and the fact that she would not be able to provide such services indefinitely. 79 Visiting the plaintiff in the group home and taking him out either for a day trip such as to a rugby league match or taking him home for one or two nights does come within attendant care services as defined. I consider those services are aimed at and have the effect of alleviating the consequences of the injury in that they reduce the plaintiff's isolation brought about by his physical disabilities and his inability to speak properly. Whilst the plaintiff is at his mother's home, she and his stepfather clearly perform services of a domestic nature for him. 80 In the context of the plaintiff's disabilities, particularly the restriction in his ability to communicate, taking him on outings and taking him home satisfies a reasonable need which was created by the attack. If it were not for these outings, the plaintiff's contact with other people would be restricted entirely to those sharing the group house with him. It is also clear from the evidence that the need to take the plaintiff home and on outings from time to time arose solely from the injuries caused by the attack in the sense that they are additional services which are quite unrelated to the plaintiff's pre-accident problems. Accordingly I reject the first challenge to this aspect of the plaintiff's claim for gratuitous attendant care services. 81 I have sought to reconcile Exhibit C with the evidence of Mrs Maynard. In her evidence she specified in general terms the hours which the plaintiff would spend at her home on the occasions he was taken there. She was not cross-examined as to those hours. Nevertheless there is some discrepancy between that estimate and the actual times specified in the early entries in Exhibit C and Exhibit C generally. It also appears from Exhibit C that taking the plaintiff home for a weekend is a relatively rare occurrence and has taken place less frequently than once per month. 82 By combining the evidence of Mrs Maynard and Exhibit C it seems to me that a more accurate assessment of the amount of gratuitous attendant care services which have been provided by her and her husband is 8 hours per week. Accordingly I find that the plaintiff is entitled to $19,600 by way of past gratuitous attendant care services by his mother and his stepfather. 83 The plaintiff's mother is now 53. There is no evidence as to her state of health at the present time. There is no evidence that either of the plaintiff's sisters have provided any gratuitous attendant care services for him in the past or are likely to in the future. No other person has been identified who might provide such services in the future. Accordingly I have concluded that when the plaintiff's mother reaches an age when she will no longer be physically capable of assisting the plaintiff, the gratuitous attendant care services currently being provided for him will cease. Alternatively if they do not cease they will be reduced as to length of time and frequency so that the 6 hours per week threshold will not be met (Geaghan v D'Aubert [2002] NSWCA 260.) 84 It seems to me unlikely that the plaintiff's mother will be able to continue to provide 8 hours of gratuitous attendant care services beyond the age of 75. Accordingly I allow in favour of the plaintiff damages for future gratuitous attendant care services in the amount of $114,913.

Accommodation, care and supervision 85 As indicated, it was common ground that the plaintiff requires substantial levels of assistance in his daily activities together with 24 hour supervision. That is currently and adequately being provided in the group home conducted by New Horizons. That has been the situation since 15 April 2003. The support which the plaintiff receives in the group home has three components (T.91-92). They are accommodation and supervision, a service fee for rent, electricity and food and a day service component. The day service component is provided by an organisation called Head Start, which provides a daily program of activities for disabled people. It is funded in a similar way to New Horizons. 86 It was submitted on behalf of the plaintiff that there should be included in the plaintiff's damages the cost of the services, both past and future, which he was receiving from New Horizons. It was submitted that there should also be included in his damages an additional component to have regard to the possibility that New Horizons might cease to provide those services in the future. 87 The basis for those submissions was that there was a strong likelihood that the plaintiff would have to reimburse New Horizons from his damages for the cost of the services provided to him. To the extent that there was any doubt about this requirement the Court should find in favour of the plaintiff since it was the defendant which was in the best position to adduce evidence concerning the relationship between the Department of Ageing Disability and Home Care (DADHC) and New Horizons. Since there was always a possibility that the group home might close or New Horizons might go out of business, some additional provision had to be made by way of damages in favour of the plaintiff to cover that contingency. That latter calculation should be based on the cost of a live-in companion carer for the plaintiff. 88 The claim under this head of damage on behalf of the plaintiff was $193,407 in respect of the services provided by New Horizons for the past, $2,163,164 in respect of the services to be provided by New Horizons in the future and some percentage of the cost of a live in companion carer to allow for the chance that New Horizons might cease providing that care at some time in the future. The cost of a live in companion carer for the future was put at $2,078,860. 89 The defendant's submission was starkly simple. The plaintiff was not entitled to any damages under this heading. It relied upon the decision in National Insurance Company of New Zealand Limited v Espagne (1960-1961) 105 CLR 569. Particular emphasis was placed on that which Dixon CJ had said at 573: "There are certain special services, aids, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so." 90 The defendant submitted that there was no "distinguishing characteristic" which took the services provided to the plaintiff by New Horizons out of the above categories referred to by Dixon CJ. 91 The defendant submitted that a primary consideration when assessing damages for the tort of negligence is that those damages are compensatory. The plaintiff should be restored, so far as money can achieve that result, to the position that he or she would have been in had they not been injured. It is not designed to provide a plaintiff with a windfall gain. 92 By specific reference to the reasoning in Espagne's case the defendant submitted that unlike that case, there was insufficient evidence to displace the general rule that if one avails oneself of community benefits, those benefits must be taken into account when assessing damages. There was insufficient evidence adduced in this case to establish the "additional" or "distinguishing" characteristic identified by Dixon CJ so as to establish an intention in the legislative scheme to benefit the plaintiff and not the defendant. 93 In order to decide this issue it is necessary to review the evidence in some detail. 94 At tab W of exhibit A there was a statement from Maria Holland, Accommodation and Development Officer Hunter Region, for DADHC. Included in that statement was: "1. Under current policy and practice, this Department does not apply a means test to the provision of supported accommodation and individual financial circumstances are not taken into account. Policy and practices are subject to continual review and appropriate modification in the normal course of business and may therefore change over time. A guiding principle is that access to services funded or provided by this Department, including supported accommodation, is determined on priority of need. Factors that are taken into account when assessing priority of need may change from time to time and criteria for a placement may vary between different group homes and different services providers.

5. In the event that Mr Manning receives a settlement which would enable him to fund his current care, the Department would advise the service provider to charge him for the cost of his care so that the funding currently provided could be reallocated to create capacity for other priority clients. … 7. With regard to your question concerning payments for past care - Mr Manning was placed with New Horizons Enterprises within the framework of existing policy and practice at the time. The retrospective payment of care back to the date of placement if any client subsequently receives a compensation payment was and is not a specified part of the funding contract between DADHC and the service provider. This does not prevent the service provider as an independent organization, making a determination to charge a client accordingly if the service provider determines that this is an appropriate course of action. This question would need to be directly addressed with the service provider, in this case New Horizons Enterprises, to determine their intentions and the policy of the organization in this regard." 95 Evidence was given by Mr Blanks, who was the regional manager for service development and planning for DADHC for the Hunter Region and the Central Coast. Part of his function was the purchasing and monitoring of services on behalf of DADHC for persons with disabilities. New Horizons was one of the non-government providers of such services with whom DADHC contracted. The services provided by New Horizons were primarily accommodation support through group homes. New Horizons was an organization which was quite independent of government. 96 His evidence as to the provision of services for Mr Manning was as follows: "A. For example, in Mr Manning's case, Mr Manning is part of a block grant that the Department forwards to New Horizons to provide services for approximately 27 people, so they get a lump sum payment from our Department for that 27 people. Out of that sum Mr Manning's care is provided in a household along with 4 other gentlemen. … Q. Are you aware from your position in the Department as to whether any means test applies to this? A. I am not aware that means tests apply. … Q. Is there any provision, to use a neutral term, in those contracts which requires a service provider such as this particular one we are dealing with here, to recover fees in some fashion from the people who use these facilities? A. Within the contract from the Department, no there isn't. … Q. As far as you are aware at the present time the Department policy is not to seek recovery of that? A. That's correct. Q. However, is there a different policy in the event that the plaintiff obtains an award of damages in respect of his care? A. If that was to occur the Department would advise New Horizons that they should levy a fee which would be the cost of care to Mr Manning for that support he receives in his accommodation. … Q. In respect of recommendations of the type that you have indicated that the Department would make to providers such as New Horizons in the event of a settlement, is there, insofar as those recommendations are concerned, have you made them in respect of two providers in situations such as this? A. Personally no, and I'm not personally aware of a situation where our region has done that. It may have occurred in the Department but I'm not personally aware. … Q. My learned friend in his last question spoke of directions you might give to New Horizons. You told us that the contract did not speak about what should happen in the situation? A. That's correct. Q. And you have told us about no act of parliament or regulation which deals with it. That is so, isn't it? A. That's correct. Q. I think you phrased it differently from my learned friend when he said earlier that you would make a strong recommendation about what would happen, that is to New Horizons? A. We would advise the service provider to make a charge. … Q. How did he come to receive the benefit of funding from the Department in a group home? A. Yep, if I could answer your last bit, the answer you gave was perhaps the historical way things had occurred to get funding out of the government. The way that it occurred, if I use Mr Manning's situation, Mr Manning post his incident went to the rehabilitation at Rankin Park. The social worker at Hunter Health at that time contacted the Department of Ageing and Disability and Homecare seeking an accommodation place for Mr Manning because of the severity of his injuries and the need for him to have some ongoing care. So we received as the Department an application as we do even today, for accommodation support. We have a committee which is called the Hunter Region Supportive Accommodation Placement Committee which role is to fill any vacancies that may occur in either the government services or the services that we fund in the non-government sector. A place became available at New Horizons which was funded through our block grant. The Department, through our Accommodation Placement Committee, made a recommendation that Mr Manning would be able to be accommodated with New Horizons within our block grant. He was trialed there, New Horizons found that to be successful. He is still there today. Q. To whom is the recommendation made? A. There are two. From the Committee a recommendation is made to the other regional director in the first place who approves the placement. The second recommendation is the recommendation to New Horizons that we believe this or that person is suitable for that particular vacancy based on the information they gave us and that the person, in this case Mr Manning, is compatible with the other clients in the house. So there is a trial period that then occurs to ensure that that is the case. … Q. Let me deal with the Regional Director first. He makes a decision, does he, based upon certain criteria that would be found in some regulation somewhere? A. The information that the Committee gives to the Regional Director, and in some ways it is a technicality, it is basically to say we have a vacancy, it is funded under the Disability Services Act and that this individual meets that criteria and from our assessment he would appear to match with this particular organization, and the approval from the Regional Director is to go ahead and place that person in that vacancy. Q. The Regional Director is exercising a power under the Disability Services Act is he? A. That's technically the case yes, that's the Act we work under and are funded under. Q. The parliament provides sums of money to the Department to administer? A. Correct. Q. And the Regional Director makes a decision pursuant to a power that's given to him by the Disability Services Act. Is that the way it works? A. Technically yes it does. There is one part before that. The Minister initially allocates the funds. The Minister in the first instance allocates the funds to that particular organization. Once they have the funds the Regional Director has the delegated power to fill any vacancies that may occur. Q. On an annualized basis a sum of money is directed to the service provider to provide services for x number of people? A. In this particular instance yes, but that's one of the models. That's one of the service models in the way that we fund. Q. So what the Director General is doing is exercising a power to allocate Mr Manning to somebody, New Horizons in this case, who has already received a sum of money from the government to provide services? A. Yes, the Regional Director not the Director General. … Q. After the Regional Director has made his decision yes, this man, Mr Manning, on the recommendation of the Committee, looks as though he would slot nicely into New Horizons, the Director General authorizes New Horizons to be approached to determine whether he is acceptable; is that right? A. The Regional Director yes, signs off, comes back to my office, we then have the discussion with New Horizons. … Q. Mr Blanks, can you help me with this, you've told us how your Department can be accessed by people in need. Is there any difference in that evidence if the particular person is very wealthy? The person may be completely disabled, may not even be able to make decisions for himself or herself, but is there a difference if that person quite fortuitously has a lot of money, is asset rich, or does that make no difference at all? A. Under policy we do not means test. However, the competition for any service from our Department is huge. The reality is our capacity to meet the current demand is just not there so our demand for services far exceeds our ability to supply a service. So in a circumstance where we had two identical people, three identical people, four identical people, and we frequently have, that's one of the considerations in priority if everything else was equal that we would have to consider is whether or not one person in fact had a capacity to pay. It is not a direct policy but it is when we drill down to how do we allocate that one bed to often ten people." 97 Exhibit D was a letter dated 7 September 2005 from Stephen Kincaid, the Chief Executive Officer of New Horizons to the plaintiff's solicitors. That letter stated: "If Robert receives a compensation payout then New Horizons' position is that we would charge Robert his allocation of the total cost of support. In the year to 30.06.04 the total cost was $2,028,163 and in the year to 30.06.05 the total cost was $2,239,308. There are twenty four residents in this accommodation service, so the allocated cost is $84,507 and $93,305 respectively. In future years the allocated cost and therefore the amount payable by Robert to New Horizons could reasonably be estimated at around the $90,000 to $100,000 per year for the present support needs. In addition, Robert would also continue to pay to New Horizons $85 per week as his contribution towards rent, repairs etc. …" 98 Mr Kincaid also gave evidence: "A. With DADHC funded accommodation, primarily DADHC is very involved in who comes into the property. Therefore if we had a referral from a family member we wouldn't say yes or no, it has to come through DADHC, what is called the Placement Committee. New South Wales Health have different systems as well, which is another part of our funded program. With New South Wales Health we have either the situation where again it comes through a placement committee where New South Wales Health are involved or they could come in direct, as in your question, where a family member could refer them. … Q. In that letter, Mr Kincaid, you say in the second paragraph that if Mr Manning received a compensation payout then the position of New Horizons is that you would then charge Robert an allocation of the total cost of support. Do you see that? A. Correct. … Q. Please go on. A. The legal basis is probably uncertain. We have a contract with DADHC for this group of twenty four people for the $2 million odd. We obviously work very closely with DADHC, as you appreciate, because we are partners. The whole basis of, the whole background of these letters, if you like, is obviously my relationship with DADHC and in that I have spoken to people who you have met here yesterday, and they would expect New Horizons to levy this charge. If I may just expand on that slightly, twenty four people supported by $2 million odd and they would expect us to support twenty five people, not twenty four, one more, so they would keep going with the existing funding and levy $90,000 so we support twenty five. That's their expectation of us." 99 Despite being invited to, neither counsel made submissions concerning the effect of the Disability Services Act 1993. This is the Act under which funding for the plaintiff is provided by DADHC to New Horizons. In those circumstances it is not appropriate to analyse the Act in any detail. It is, however, clear from the objects of the Act (s3) that its focus is on the provision of services to advantage and support persons with disabilities in the community. 100 As the defendant submitted the resolution of this question depends upon what was said by the High Court in Espagne's case. The relevant statements of principle are: "There are certain special services aids benefits subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him." (Dixon CJ at p 573) "In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss if: (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers: in those cases it is immaterial that, by subrogation or otherwise, the contract may require a refund of monies paid, or an adjustment of future benefits, to be made after the recovery of damages. The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under this contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause." (Windeyer J at 599-600) 101 By reference to those criteria a Court is required to consider the nature of the benefit which the defendant seeks to set off against damages and to inquire whether it was intended that the plaintiff should enjoy it in addition to whatever damages he might recover from the defendant. The Disability Services Act by which the benefit is delivered to the plaintiff is of assistance in that its clear focus and emphasis is on advancing the interests of persons with serious disabilities. 102 The benefit under consideration is the provision of accommodation and care services for a seriously disabled person. Applying those statements of principle it is my opinion that the legislature intended the benefit for the plaintiff personally and not in reduction of his entitlement to damages. This seems clear from the fact that the receipt of the benefit is not dependent upon lack of earning capacity or lack of means to pay for such services and is not intended to replace services which otherwise the recipient would pay for. 103 I do not read the later cases of Redding v Lee (1983) 151 CLR 117 and Manser v Spry (1994) 181 CLR 428 as altering that fundamental approach. It is true that Manser v Spry identified three possible indicia to discover the legislative intention.

(i) The financial source of the benefit; (ii) A provision which requires repayment of the benefit out of damages; (iii) The nature of the benefit.

Even applying that refinement to the Disability Services Act the only one of those indicia which would seem to be relevant is still "the nature of the benefit" and the result is the same. 104 Apart from the statements of principle referred to, it is also of significance that the court regarded as important in Espagne that the invalid pension was granted in the exercise of an administrative discretion. "An invalid pension is granted in the exercise of an administrative discretion, though doubtless a discretion exercisable on grounds which are not at large, and it is granted as a benefit to the person after a consideration of his general situation. It is true that are very special provisions concerning a pension to a blind person … but a grant even of such a pension cannot be obtained as of strict right and it is plain that it is granted after a consideration of the position or situation in which the applicant stands and entirely for his use and benefit and not in relief of any person antecedently liable to him to compensate him in any way for his loss of vision." (Dixon CJ p574) "Although it is consistent with the Act that within limits the Commonwealth is under a legal obligation to pay instalments of a pension that has been granted, there can be no doubt that no person is legally entitled to the grant of a pension and that a pension which has been granted may, in accordance with s46, be cancelled suspended or reduced against the will of the pensioner, although where the pensioner is totally blind this cannot be done on the ground that the pensioner is the owner of property or the recipient of income." (Menzies J p 578) "The Act regulates the grant of pension; but it does not create an enforceable right to a pension. The only right it gives to claimants appear to be a right to have a claim for a pension determined by the Director General of Social Services in accordance with the Act and, perhaps, a right in a pensioner to whom the pension has been granted to have any amounts actually accrued paid to him". (Windeyer J p585). 105 It is clear that the benefit which the plaintiff is receiving is of a discretionary kind. He has no legally enforceable right to it as such. The evidence as to how he came to be the recipient of the benefit showed not only an exercise of discretion on the part of the Regional Director, but also a prior exercise of discretion by the Placement Committee when it made its recommendation to the Regional Director. Those exercises of discretion not only identified which recipient for services should be selected but which service provider should provide those services. I appreciate that the discretionary element was not decisive in Espagne's case but it was a matter which the Court took into account as relevant to its conclusion that the invalid pension should be disregarded when calculating the plaintiff's damages. 106 There is also the evidence that should damages be awarded to the plaintiff sufficient to pay for his care, DADHC will "advise" New Horizons to impose a charge on the plaintiff for the services which it provides to him. It is clear from Mr Kincaid's evidence that if such pressure is brought by DADHC, New Horizons will charge the plaintiff for the services which it provides. It is not entirely clear from the evidence whether such a charge would be imposed only if damages were awarded to the plaintiff for future care or whether such a charge would be made in the case of any substantial damages being awarded in favour of the plaintiff. 107 The situation seems to be loosely analogous to conditional wage payments discussed by Luntz "Assessment of Damages for Personal Injury and Death" 4th ed at 8.3.9 - 8.3.13. When considering the situation where an employer had advanced wages to an employee on condition that if the employee succeeded in recovering damages the employee would reimburse the employer out of such damages, Luntz concluded that the better view was that the plaintiff should be able to recover damages for loss of earning capacity notwithstanding that the obligation to repay the employer (either legal or moral) was a conditional one (para 8.3.9). 108 In reaching that conclusion the learned author relied upon the decision of the Full Court of New South Wales in Juranovich v McMahon (1961) NSWR 190. He did not think that the decision in Juranovich v McMahon was inconsistent with the dicta of the High Court in Treloar v Wickham (1961) 105 CLR 102. 109 Although there is no legislative requirement or contractual requirement for New Horizons to charge the plaintiff for the services which it is providing to him if he recovers damages, there is nothing to stop New Horizons from doing so. It is an independent organization operating at arms length from the government and could impose such a charge if it wished. I am satisfied that if the plaintiff is awarded damages for the care and supervision provided to him by New Horizons, he will be charged for those services in the future. 110 The situation in relation to the period 15 April 2003 until the date of judgment is less clear. The current policy as Ms Holland indicated in her statement, is that DADHC would not advise New Horizons to seek recovery of those monies. Nevertheless as Ms Holland also pointed out, New Horizons is an independent organization and it could seek to recover those monies if it so wished. The letter from Mr Kincaid (at [98]) suggests that such a charge would be made whereas his evidence (at [99]) suggests this would only happen if DADHC so advised. 111 What is of concern is the line of authority that the receipt of a specific benefit means that a plaintiff has suffered no loss and therefore can recover no damages. (Haines v Bendall (1991) 172 CLR 60 at 63.) For example if a plaintiff is unable to work but nevertheless receives wages or sick pay he cannot claim that he has suffered a loss of wages. If he needs medical attention but it is provided free, he cannot claim that he should be credited with an amount for expenditure on medical attention which it has not been necessary to make. (Paff v Speed (1961) 105 CLR 549 at 567, Graham v Baker (1961) 106 CLR 340 at 343, 346.) 112 The plaintiff's claim is for the cost of services provided to him by New Horizons between 15 April 2003 and the date of judgment. Those services have been provided. The plaintiff has had to pay nothing. If the plaintiff is not required to repay those monies in the future, then he has suffered no loss and is not entitled to damages. It follows that the only question in relation to that claim is whether the plaintiff will be obliged to pay for those services at some time in the future. 113 I am of the opinion that it is unlikely that the plaintiff will be required to make any payment to New Horizons in respect of the past services which it has provided for him. The effect of the evidence from DADHC personnel is that it will not advise New Horizons to seek payment for services provided in the past. My impression of the evidence of Mr Kincaid is that absent such advice from DADHC, New Horizons will not seek payment for services rendered to the plaintiff in the past. That being the case the plaintiff has suffered no loss and is not entitled to damages for the services provided to him by New Horizons in the past. 114 The situation in relation to the future is quite different. The strong likelihood is that if the plaintiff recovers damages DADHC will advise New Horizons to impose a charge on the plaintiff for the provision of future services. As Mr Kincaid indicated if such advice is given, New Horizons will make a charge on the plaintiff for those services calculated as indicated in exhibit D. That approach is likely to be followed whether or not such damages include a component for future accommodation and care. 115 When one applies the statements of principle in Espagne's case to the future provision of services and when one has regard to the fact that the plaintiff's entitlement arose as a result of the exercise of an administrative discretion, I conclude that the plaintiff's damages for future accommodation and care should be assessed without reference to the benefits which he is likely to receive from New Horizons. Accordingly I accept the calculation, which has been put forward by the plaintiff of $2,163,164. 116 The plaintiff submitted that as well as awarding damages for the estimated cost of the provision of services by New Horizons for the future, an additional amount should be awarded to have regard to the possibility that New Horizons might go out of business or that the group home might close or that in some other unspecified way, New Horizons and/or DADHC would be unable to provide accommodation and care services for the plaintiff. No evidence was adduced to indicate that such events were likely to happen. 117 For damages to be awarded on a Malec v JC Hutton basis there has to be a real chance that some event will occur. If the chance is so low as to be speculative then the chance can be disregarded. 118 Ms Holland in her statement said: "2. Mr Manning will be able to continue to reside in his current placement for the foreseeable future. At this point in time there has been no identified reason or any concerns raised by the service provider, New Horizons, which would potentially lead to this placement being changed. … 3. Where an existing group home closes for any reason, it is usual for alternative support arrangements to be made for all residents. This normally involves a review of their support needs, and of their placement options and preference at the time of the closure of their existing service. It is current practice for the Department to take all of these factors into account and to try and reach an outcome that is satisfactory to all stakeholders, within the dictates of available resources. …" 119 The evidence of Messrs Blanks and Kincaid was that New Horizons was a large organization which operated throughout most of New South Wales and had been in existence for between 30 and 40 years. It conducted 80 or 90 main accommodation dwellings or institutional dwellings and provided support for approximately 100 people in their own homes. DADHC regarded New Horizons as one of its best service providers. 120 In my opinion the plaintiff has not discharged the onus of establishing that it is anything other than speculative that in the future New Horizons or DADHC may not be able to provide accommodation and care for him. Accordingly I do not award any damages in respect of that contingency.

Conclusion 121 My assessment of the plaintiff's entitlement to damages is as follows: Past-out-of-pocket expenses $ 4,000.00 Future-out-of-pocket expenses $ 22,034.00 Non economic loss $ 320,000.00 Gratuitous attendant care services (past) $ 19,600.00 Gratuitous attendant care services (future) $ 114,913.00 Future accommodation and care $2,163,164.00 $2,643,711.00

122 As indicated (at [36]) the parties requested that judgment not be entered in this matter until submissions could be made as to fund management. Accordingly I publish my reasons for the calculation of damages which I have made so far. Final orders and judgment will be made when the question of funds management has been decided. **********

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