Damages - Proof of causation - Relationship between tortious act and disability - Athetoid cerebral palsy. (Aust Dig Damages [22])

Damages - Particular awards of general damages - Tasmania - Athetoid cerebral palsy suffered at birth - Need for specialised housing and facilities, constant attendant care - Method of assessment - Lost earning capacity - Life expectancy. (Aust Dig Damages [61])

Damages - Future attendant and other care - Whether cost recoverable. Common Law (Miscellaneous Actions) Act 1986 (Tas), s5. (Aust Dig Damages [61])

HOBART, 17 - 20, 23 - 27, 30 June, 1 - 4 July 1997 (hearing), 3 September 1997 (decision)

Causation -- A Catastrophe at Birth or Pre-Existing Cerebral Defect?

The plaintiff was born at the Queen Alexandra Hospital at Hobart on 27 February 1990.

The plaintiff alleges that the administration of the drug syntometrine to her mother before her birth was the cause of the athetoid cerebral palsy, spasticity and resultant disabilities from which she now suffers. This allegation is contested by the defendant.

On 30 June 1997, for reasons which have already been published, I ruled that notwithstanding the entry of consent judgment in favour of the plaintiff for the damages to be assessed, the issue of causation in relation to the plaintiff's condition was still a live issue. It is therefore necessary for the plaintiff ("Megan"), to establish a causal nexus between her present condition and the wrongful administration of syntometrine to her mother. Thus I turn to the evidence which has been adduced in respect of this issue.

Heather Grimsey ("Heather"), the plaintiff's mother said that she had had an uneventful pregnancy after Megan's conception. Prior to becoming pregnant with Megan, Heather had suffered from no significant gynaecological problem. She consulted a gynaecologist in private practice for periodic check-ups. At twenty-three weeks she had an ultrasound scan and, on the monitor screen, was able to see Megan moving in her womb.

Neither before nor after the scan did her gynaecologist express any concern. Heather fell ill at one stage with what she described as a "winter bug" but she took no drugs and her recovery over about a week was uneventful.

She had no fall or accident resulting in physical injury during the pregnancy. The pregnancy continued to full term and when it was a few days overdue Heather went into labour. The labour was no more difficult than it had been for her eldest child, Lesley, although in Lesley's case labour had been induced whereas Megan's labour began and continued naturally without intervention.

There was no history of cerebral palsy within her immediate family, although she believed that one of her cousins may have been the father of a child with cerebral palsy. It is worth noting at this point that no expert evidence was given to suggest that such an event would indicate a genetic predisposition on Heather's part to have a child with a similar condition.

Heather was accompanied in the labour ward at the Queen Alexandra Hospital by two midwives, a medical student and her mother.

She was having regular contractions which she described as "pretty painful". The contractions became more regular and also stronger. Heather asked for a pethidine injection to alleviate the pain. An injection was prepared but before being administered she decided to continue for as long as she could without it. A little later her pain became so unbearable that she asked for pethidine again. By this time, according to her mother's evidence, the top of Megan's head was just visible in the vaginal canal. The injection was administered to Heather.

As is now known, it was syntometrine rather than pethidine. Syntometrine is frequently administered after childbirth to assist in the expulsion of the placenta from the mother's body and to reduce postpartum bleeding.

On the injection being administered to Heather, she had a massive continuous contraction which would not stop. Heather said she felt as though she was pushing against an immovable barrier. "It went on for ages, it just wouldn't let up", she said. Though unsure of the exact sequence of events, she believes that the contraction may have subsided and normal contractions again resumed before Megan was born about twenty minutes after the injection had been administered.

She was aware of some concern being expressed by one or both of the midwives and she was told they were giving Megan oxygen to "pink her up."

About twenty minutes after Megan's birth the placenta was delivered; it was bluish in colour and there was not much blood.

After Megan was taken out of the delivery room, Dr Bill Watkins, the gynaecologist on duty at the Queen Alexandra Hospital, came into the room and spoke to Heather and her mother.

Objection was taken by the defence to the admissibility of anything which Dr Watkins may have said. It was submitted that any observation he may have made could not be regarded as part of the res gestae or, alternatively, it had not been proved that he had the authority of the Hobart Public Hospitals Board to make admissions on its behalf.

According to Heather her conversation with Dr Watkins proceeded as follows:

"He introduced himself, he explained to me that there'd been a mistake made, that I'd been given the wrong injection. The needle that should have been given after the baby's born was given to me instead of Pethidine. I think he said something about the placenta and minimising loss of blood and he said something about brain damage and he used the words 'brain damage' and he said that she might die."

It seems to me that Dr Watkins' statements may properly be regarded as part of the res gestae, the res for this purpose being not merely the administration of the drug but its immediate effects and its potential to cause damage to Megan. The general test for admissibility of a statement claimed to be part of the res gestae is that the utterance sought to be proved must be a spontaneous declaration made shortly before, during, or soon after, the event in issue, by observers of or participants in the event and concerning the event. I think that Dr Watkins' conversation with Heather meets that test. However the value of Dr Watkins' words, as admissions, is limited because the erroneous administration of syntometrine is not in issue and the effects of the drug in expelling the placenta and minimising blood loss were described by Dr Newman, whose evidence I will refer to later. Although challenged on other issues, this aspect of Dr Newman's evidence was not impugned by the defence. The only significant part of what Dr Watkins said which appears to have particular relevance to the disputed issues in this case, is his mention of "brain damage" and his opinion that Megan "might die".

Taken by themselves, these fairly vague remarks could certainly not justify a conclusion that the syntometrine had in fact caused brain damage, and, as Megan patently did not die, that aspect of his expressed opinion is of no consequence. Heather Grimsey's evidence does not tell me what Dr Watkins was saying about the likelihood or otherwise of brain damage. At best, it seems to suggest a professional opinion not inconsistent with that expressed by Dr Newman and perhaps tending to support the Apgar Scores which, in any event, are recorded in the hospital records which were admitted into evidence without objection.

Also in the Perinatal Intensive Care summary in those records, this entry appears:

"Problems - Perinatal asphyxia requiring resuscitation at delivery - this was probably secondary to intrapartum administration of syntometrine mistaken for pethidine. Megan had significant early fitting requiring multiple anticonvulsant therapy but this settled and she was not on any medication at the time of the discharge with no more reflex and some hypertonicity."

This material is admissible, relevant and probative of the issues to which it relates (O'Donnell v Dakin [1966] Tas SR 87).

I should add that notwithstanding my assessment as to the minimal value of the words attributed to Dr Watkins, I think that what he said was also admissible on the basis that; according to the unchallenged evidence he was the professional officer in charge of delivery procedures at the hospital. As such, I infer that he had responsibility for the treatment of both Heather and her new born infant at the relevant time. In this capacity he would have had a duty to communicate with, and advise Heather on, matters relevant to both her health and the health of Megan. I have little hesitation in concluding that what he said was said within the scope of his authority, and should be seen as his appraisal of the seriousness of the situation which had arisen. Its admissional significance, however, is very limited. At best it could be seen as an imprecise, vague and very general confirmation of the evidence of Dr Collins and Dr Newman, if only in the sense that it is not inconsistent with the opinions which they expressed.

Dr Kevin John Collins, FRACP, from Victoria, has practised as a paediatric neurologist for twenty-one years. He has examined Megan for the purpose of these proceedings on two occasions and he gave detailed evidence during the trial as to the nature and extent of her motor and other disabilities. He also expressed the opinion that it was consistent with Megan's condition that she had suffered hypoxic ischaemia as a consequence of strong and prolonged uterine contraction produced by the injection of syntometrine during labour. A matter of some significance to Dr Collins was that Megan was born with a normal head circumference which fell below normal limits within the six months following her birth. In Dr Collins' opinion, this fact tends to confirm that Megan's development was not abnormal prior to birth but became so thereafter, suggesting in turn that trauma at or about the time of delivery was the cause of brain damage and resultant cerebral palsy. Dr Collins said:

"We have a description that the baby was severely asphyxiated at birth. This is perhaps clarified later by saying that the baby was cyanosed and apparently not breathing and indeed was not breathing for eighteen minutes, and then, at one minute, only a heart beat was present. We don't actually know what else the baby was doing for eighteen minutes. I see that after being initially flaccid the baby had the onset of seizures which were difficult to control and I suppose the point I was making earlier was simply that being born flaccid, not breathing with a depressed heart rate, subsequently going on to have seizures in the first twenty four hours of life is a pattern neonatal paediatricians and others will identify as being consistent with what is sometimes called a hypoxia ischaemic encephalotrophy or the term asphyxial encephalotrophy might be used synonymously with that. I suppose I was making the general point that if we have a story of a baby who was born in this condition, who was born with a normal head circumference, and then over the first six months of life the head growth rate slows down it would be reasonable to see a casual link between those two circumstances."

Dr Collins agreed that there are many possible causes of cerebral palsy in infants arising from the embryo's development, defects in the vascular system, or from infection, or genetic, metabolic and toxic causes. Under cross-examination he disclaimed any expert knowledge or awareness of the actual physiological or toxic consequences of the syntometrine injection which may have produced hypoxic ischaemia in Megan.

Dr Neville Newman, a retired paediatrician who specialised in neonatal and perinatal paediatrics for some years prior to his retirement in 1989, also gave evidence. It was suggested by defence counsel that he was insufficiently qualified to express opinions on the issue of causation of Megan's disabilities but I had no hesitation in rejecting that submission. There is obviously a considerable overlap between obstetrics and perinatal paediatrics. Furthermore, although it is probable that a pharmacologist or toxicologist would have a more detailed knowledge than a general physician of the effects or likely effects of pharmaceutical preparations, it is obvious that most doctors who specialise in a particular area of medical practice will have a sound knowledge of those drugs which have particular relevance to that or allied areas of medicine.

Dr Newman claimed, and obviously had, an awareness of the properties and physiological effects of syntometrine by virtue of his long expertise in perinatal paediatrics. Like Dr Collins, he had access to hospital records and noted that Megan's length, weight, and head circumference were within the average range at birth, but within a few months there was clear evidence of retarded development in all these areas. As previously mentioned, these factors tend to suggest normal development up to about the time of birth, with some supervening event taking place to bring about damage to the brain.

Dr Newman expressed the opinion that an intravenous injection of syntometrine would cause immediate prolonged and unremitting spasm of the uterus interrupting the flow of blood into the uterus itself and preventing oxygen crossing from the maternal circulation into the foetal circulation, leading in turn to starvation of oxygen to the baby's brain (hypoxia) with consequent brain damage. At birth, Megan had an Apgar score of 1 out of a possible 10, indicating serious distress and, after five and ten minutes respectively, the Apgar score was still extremely low, indicating severe oxygen deprivation whilst in utero. The longer it takes for a child to attain an adequate Apgar score after birth, the greater is the likelihood that the child will sustain severe cerebral injury. Dr Newman was skilfully cross-examined by Mr Tree as to the frequency of cerebral palsy occurring in babies with low Apgar scores, and the effects of syntometrine upon twin births, in the days before ultrasound investigation of mothers during pregnancy had been available to indicate the presence of two foetuses in the womb. However, Dr Newman was able to convincingly demonstrate that these features did not affect the validity of the opinions which he had expressed.

The defence called no evidence to contradict Dr Newman's opinion or to provide an acceptable alternative theory as to the cause of Megan's cerebral palsy, although during the course of Dr Newman's cross-examination he was questioned about views which had been expressed in a so called "position statement" published in Vol162 of the Medical Journal of Australia, dated 16 January 1995. That statement examined the nature of cerebral palsy and its prevalence as a childhood affliction, with particular reference to antenatal causes. It postulated that most infants who develop cerebral palsy are born from uncomplicated pregnancies and are delivered without signs of foetal heart rate abnormalities and "what little evidence exists suggests that less than 2% of cerebral palsy could be attributed to suboptimal intrapartum care".

The statement appears to be the product of a "consensus" conference held in Adelaide in August 1994 and sponsored by the South Australian Health Commission. A list of the conference delegates discloses that although many appear to have significant medical qualifications, there were also paramedical and legal representatives present. A good deal of the paper is taken up with legal issues and concern for insurance ramifications leading to increased premiums from claims that cerebral palsy may be attributable to intrapartum carelessness. I have the suspicion that the document may lack the pure objectivity of painstaking scientific analysis. In any event, counsel for the plaintiff had no opportunity to test the paper's data and conclusions, and it plainly cannot be accorded the same weight as the opinions expressed and tested in the witness box. Whilst it cannot be denied that several differing mechanisms may be responsible for cerebral palsy in new-born infants it would be a truly remarkable coincidence to find that a foetus which had sustained brain damage at or shortly prior to birth from an unknown or unascertainable cause, was actually delivered in rare pharmacologically induced circumstances which were of themselves entirely likely and appropriate to produce foetal hypoxia and consequent brain damage.

I have little difficulty in concluding on the balance of probabilities that Megan's cerebral palsy and resultant disabilities are entirely attributable to the negligent administration of the drug syntometrine by the employees or agents of the hospital.

I therefore turn to the issues relating to damages.

Heather is still a young woman and, despite having become a mother at the age of 20 years when Lesley was born, she continued in paid employment. She had originally secured a job at the Reserve Bank on leaving school at the age of 16. She remained there for about five years, gaining experience and skills in various clerical, book keeping and secretarial roles. She married in 1980 at the age of 18 and Lesley was born two years later. She resigned from the Bank in January 1985 and resumed work in similar employment with the Westpac Bank in November 1985. Separation from her husband occurred in 1986 and she continued in her employment with Westpac until about August 1989. During this period she continued caring for Lesley as a sole parent and commenced a relationship with the man who subsequently became Megan's father. After she became pregnant with Megan, she continued working for about three months. She then resigned from Westpac, but had the intention of returning a year or two after the birth of her new child.

Following the acute trauma of Megan's birth and upon her discharge from hospital, Heather moved into accommodation provided by her parents at their home in Kingston. She then applied for a Housing Department home which was eventually allocated to her at Acacia Street, Huonville. Heather, Lesley and Megan moved into these premises as tenants. At first, Heather's understanding of Megan's condition was incomplete but, following her visit to a local doctor soon after moving to Huonville, the catastrophic nature of her daughter's condition suddenly dawned upon her and a descent into the black abyss of chronic depression commenced.

Megan became a difficult caring problem. She was difficult to feed and her body and limbs were frequently in spasm. All normal baby care tasks were considerably prolonged as a consequence of these athetoid movements. By the time Megan was 12 months old, Heather's capacity to continue in her mothering role had deteriorated and Megan was placed in the Mothercraft Home at Gore Street in Hobart on alternate weekends to provide some degree of respite care. As Megan continued to grow, albeit at a rate significantly less than a normal child of her age, she became more of a handling problem for her mother. Always strong as a result of the increased tonicity of her muscles, she became stronger as her age increased. During her waking hours she required constant supervision or attention. As a consequence, despite her best endeavours, Heather found that her relationship with Lesley was under strain. Lesley started to become withdrawn and her relationship with her mother began to deteriorate. Lesley was five years older than Megan and Heather was calling upon her to provide supervision and care for her younger sister.

Before Megan was 2 years old, the Mothercraft Home closed and alternative arrangements for respite care became necessary. At first, periodic respite care was provided in private homes. There were difficulties associated with this, however. The standard of care left a lot to be desired in some instances and some of the better carers were unable to continue -- perhaps not surprisingly in light of the evidence of Ms Sammons, an experienced occupational therapist, who has dealt with many disabled children and who described Megan as being one of the most difficult management problems which she has encountered in twenty years of professional work, due to Megan's constant involuntary movements, her strength and her particular personality. After this style of home-based respite care became unacceptable, Megan started going to Quindalup, a purpose built, publicly funded respite centre, then situated at New Town.

Before her first birthday, Megan started attending at the Douglas Parker Centre at New Town, once or twice per week, for what is know as "conductive education" -- a form of intensive physiotherapy, occupational therapy, speech therapy and general education, originally developed in Hungary. Heather observed that this was of considerable benefit, as Megan's concentration and play skills improved and she began to achieve a degree of control over her involuntary movements. Unfortunately, this program ceased after about one year and has not been reinstated. There is, however, a similar program now available on the mainland and known as the Hungarian Summer School. It was described by Ms Sammons in the following way:

"The Hungarian Summer School is a programme that I believe is run in Queensland and Sydney at present, based on the Pato method or conductive education method of treatment for children with cerebral palsy. The Pato method was actually initially devised in Budapest in Hungary in its pure form and I've had experience of that particular therapy in theory and in observing programmes over the last twenty years.

Conductive education is a method of treatment of cerebral palsy that works with a child in a very intense way from morning to night virtually in terms of teaching them physical abilities in the basic positions of lying, sitting, standing -- in its pure form in Budapest, where children actually go for sessions and live in residentially, the morning would start with them rolling over and learning how to lower their feet to the ground -- a bit like Megan does now -- out of bed, holding on to their bed, which is usually slatted so that they can get a better grasp, lowering themselves into standing and then from there practising standing to be able to bend at the knees and sit on their pottychair. So the first thing they do in the morning is they toilet. And then from there they have to all rise to standing for transfer back on to their bed where they lie down ready to do dressing, so it's an all round sort of approach of practising in these basic positions. Then they go off for the school day and it's again lots of 'reach', 'I reach', 'I grasp', 'I hold', 'one, two three', so there's a lot of rhythmic intervention, a lot of verbalising as they move. So it is fairly intensive. But, unfortunately, it has not been replicated outside of Budapest because it is so didactic and incredibly, sort of, full on approach. So what we've got in Australia is hybrid forms of the therapy that are run through the Spastic Society in different states of Australia.

During the school holidays when there's not likely to be as regular therapy available I think it would be a great benefit for Megan. The therapy only benefits certain children and certainly athetoid children are usually quite good candidates for it."

When Megan was 4, she had a year of early special education for two days per week under the auspices of the Douglas Parker Centre. Not as much progress was observed during this time and, indeed, in respect of her degree of control over involuntary movements of the trunk, there was some regression, according to Heather's observation.

Heather's coping capacity was beginning to deteriorate significantly at this time and, as a result, Megan commenced to attend the Huonville Community CrËche, which obviated the necessity for long trips to and from Hobart. Heather says that she was "becoming very slow, -- very tired, constantly tired, in a lot of pain, my lower back was suffering, just slipping badly". On some days she was "just not functioning".

In 1995 Megan started at the Huonville Kindergarten two full days a week. Whilst there she was in the care of Mrs Jill Gatenby, who was employed as an "integration aide" by the Education Department. Having the opportunity to mix with other non-handicapped children was of considerable benefit to Megan, who quite obviously enjoyed their society.

Megan still attends the school on a regular basis and plainly she is accepted wholeheartedly within the school community. A video tape showing her school activities at the present time was included in the evidence and this enabled me to see first hand how activities and lessons are conducted with her class. There is, however, one obvious comment which I feel I should make, and that is that Megan, although physically present in the classroom, is quite unable to participate in any of the academic aspects of the class activities. I think she is also probably a distraction to the other pupils to some extent, due to her loud and spontaneous exclamations from time to time. On the other hand, I was told that Megan is directly and enthusiastically involved in many group activities; for example, craft work, and I was told that her fellow pupils seem to enjoy having her in their presence, but I have some doubt as to whether she will be able to continue through the school with her classmates as they progress to higher and higher levels of education. Perhaps she will continue at the school by dropping back a year from time to time. I will refer again to her cognitive and academic capacities at a later stage.

Returning to Heather's coping capacities, it is plain that around Christmas 1995 she completely "dropped her bundle" following an attack of influenza. She simply felt unable to go on. As a consequence, Megan was admitted into long-term respite care at Quindalup, which was also combined with family based respite care of the type previously described. As a consequence of this arrangement, she ceased living at her family's home at Huonville.

In 1996, Megan entered the preparatory class at the Huonville school on a full time basis. During the first half of the year she returned to live at home with Heather and Lesley. By this time Megan was being moved from place to place as necessary, either in a wheelchair or by car, but when indoors it was necessary for her mother to carry her from room to room, due to the narrowness of the passageways and entrances which made it virtually impossible to manoeuvre a wheelchair within the house. As Megan is unable to hold on to her mother and is in virtually constant writhing motion, it is easy to understand what an arduous task this must have been. The house is not equipped with ramps to provide wheelchair access, ceiling hoists to facilitate movement from room to room, or special bathing facilities. Whilst indoors, Megan would be seated in a high chair or nursed on her mother's lap. If placed upon the floor she had the ability to move about by wriggling on her stomach, lying on her back and using her arms and legs in a kind of crab-like motion, or rolling and levering herself against the furniture. Megan had a separate bedroom and could manoeuvre herself out of bed if she woke up before other members of the family. As a consequence, it was necessary to keep her room free from dangerous impediments and to put a spare mattress on the floor at the edge of her bed. In the loungeroom, constant supervision was required because of the presence of a stereo system, heaters and the like. Megan had achieved a minimal degree of bowel and bladder control, but it was not complete, as she was still requiring about half a dozen nappy changes per day.

Before mid-1996, there was a short period of time during which Megan returned home to Acacia Street and Family Based Care Inc provided a carer to assist with Megan for 1[Omega] hours on week days before school and for a further two hours per day after school. Heather found this to be of considerable assistance in practical terms, but she found that her privacy was heavily compromised with the result that after about two months she put an end to this arrangement.

From what has already been said, it will be apparent that Megan's development has been grossly abnormal. She was, and is, unable to sit by herself, stand, crawl or walk. She was, and is, in constant motion due to the athetoid effect of her cerebral palsy, except when she is in bed asleep. She was, and is, unable to speak, except for a few monosyllabic and indistinct words. She cannot read, although she obviously has limited powers of sight recognition. She is unable to wash, bathe or clean her teeth. She cannot dress or feed herself. When performed for her, both these task are very prolonged and laborious. Toileting is either virtually uncontrolled or carried out with the assistance of others. For all activity she is totally dependent upon others. Unless physically restrained, she is in almost constant motion. She has a basic capacity to make some of her needs and preferences known if interrogated by signifying a positive or negative choice of options by the use of a very limited vocabulary of poorly articulated words, facial expressions and bodily movements.

I do not think that a repetition of Heather's daily tasks in caring for Megan will provide a clearer picture of her problems than the inferences which will naturally occur to the reader from the above description. Plainly enough, although physically underdeveloped when compared with other children of her age, Megan's care demands a great deal of physical exertion and strength.

After the employed carers left the home, the task of supervising Megan after school fell to Lesley, while her mother prepared the evening meal and performed other domestic chores. Although Lesley performed this unrewarding task effectively, it was obviously a great imposition on an 11 year old child who would sooner be playing with her friends or following some other personal activity. Even watching television programs was dictated by Megan's wishes as she had her own obvious preferences and would tend to relax if watching something she liked, but could be noisy or disruptive if not.

Her daily bath was something which she enjoyed and, judging from the video tape which showed her in the bathtub at Quindalup recently, she still likes this process. This is a feature to bear in mind when assessing some items of damage which have been challenged by the defence, in particular the need for a spa bath and hydrotherapy pool.

Obviously the social life which both Heather and Lesley were able to enjoy with their friends was substantially limited by Megan's condition of total dependency. Heather has received constant support from her parents and it was plain, whilst Mrs Fay Grimsey, Megan's grandmother, was giving evidence, that she has a great love for Megan. Mr Grimsey, her grandfather, did not give evidence but was in court almost constantly throughout the trial and it was plain enough from his reactions to the testimony of witnesses that he, too, has a sincere affection for his disabled granddaughter.

It was clear from the evidence, not only from Heather, but also from a number of other witnesses, that Megan is capable of showing affection or dislike for individuals. Essentially she has good social skills, although they are extremely limited. She appears able to engender a good deal of genuine affection in those with whom she comes into contact. She is capable of laughing or crying. She relates very well to Jill Gatenby. These are features to be borne in mind when considering whether or not living at home or in an institution is the preferable course for Megan in the future. This will be discussed later.

Mrs Gatenby, Megan's integration aide at Huonville Primary School, has tertiary qualifications and long experience as a teacher of young children. Whilst lacking specific skills in teaching boys or girls with disabilities, she is a very appropriate person to be carrying out the duty of caring for and assisting Megan in the school environment. She gave evidence of her experiences with Megan since she commenced schooling in 1995 and was particularly illuminating as to the extent of Meagan's verbal and non-verbal communication abilities.

She was a very important and valuable witness, as her experiences with and perceptions of Megan's progress formed a large part of the historical data on which several of the expert witnesses based their opinions. Accordingly, it is appropriate that I record that she was entirely creditworthy and reliable in all aspects -- indeed, I do not understand the contrary to have been suggested. She described Megan's enjoyment of "anything that was bright, loud ... music, drama ... dressing up, playing in the doll's corner and painting". Megan's ability to participate in such activities is very limited but nonetheless she enjoys trying. Using a clock face scanning device, she is able to make simple choices which, in Mrs Gatenby's assessment, were "arguably about 50% - 60% reliable" but have now improved to about 80%. The problem seems to be one of timing with the control switch, rather than Megan's lack of perception in making the intended choice.

Megan's emotional responses have clearly developed. She laughs heartily and often at amusing situations. If unhappy, she will cry. Mrs Gatenby described the difficulties of moving Megan in and out of equipment such as her wheelchair and standing frame and a student chair used for group participation. Mrs Gatenby also noted that during her second year at school, Megan has started to initiate contact with other children by touching them and rolling in their direction. Megan appeared to form a friendship with two little girls in particular. It is also evident from what Mrs Gatenby said that there has been a slow, but clearly discernible, progression in Megan's skills in school learning and play activities, use of equipment and literary and numeracy performance. This should not be taken as meaning that Megan has developed other than the most basic and rudimentary skills in any of these areas, but plainly there has been a noticeable improvement and development.

Like other witnesses, eg, Ms Xenitelis, Mrs Gatenby described the high physical demands of caring for Megan. As previously noted, her arms, legs, head and torso are writhing in an involuntary manner nearly all the time. In addition, she is quite heavy and is very difficult to hold, especially as she is capable of resisting if she wishes, although Mrs Gatenby did mention that if requested, Megan can control her athetoid movements to some extent to facilitate her movement between the taxi which brings her to school and the classroom. Others also described how she can achieve relative stillness by a supreme effort of will for short periods of time. On the basis of such evidence, there can be no doubt that Megan requires, and will always require, constant full time care on at least a one to one basis.

Many of Mrs Gatenby's observations were confirmed by the evidence of Ms Karen Frost, a social trainer employed at Quindalup. She graphically described Megan's joy when going on outings in the Quindalup van. She also confirmed the many problems which can arise when lifting and otherwise dealing with Megan.

One of the important questions which intrudes one way or another into most aspects of Megan's claim is that concerning her life expectancy. The actuarially assessed life expectancy for a female youngster of Megan's current age is 74.03 years. It is a well known fact that the life expectancy of seriously injured and disabled persons can be materially shortened. At one time it was common to discount long term claims by paraplegics and quadriplegics quite drastically because of the risk of the onset of life threatening infections resulting from their immobility and inability to appreciate the development of painful symptoms from pressure sores and internal diseases. The standard of modern care regimes has gone some way to reducing these problems, but no doubt they still exist.

So far as people seriously disabled by cerebral palsy are concerned, there appears to be a paucity of helpful data to establish the extent to which life expectancy may be diminished. Mr Tree acknowledged correctly that a loss of expectation of life caused by a tortfeasor is itself an aspect of loss which must be appropriately compensated and, it may be added, such items as loss of assumed earning capacity during the "lost" years may be taken into account after allowing for maintenance expenses, tax and the like during those years (Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94).

"While it is true in general terms that individuals with severe cerebral palsy have an increased risk of death from respiratory problems whether from infections or aspiration of food and fluid into their airways, the available literature suggests that individuals who are able to be fed orally -- ie do not require tube feeding may survive well into adult life."

Dr Collins also said that persons with cerebral palsy who are able to feed orally and have mobility (and Megan has both capacities) have got "an 80% to 90% chance of living to the age of 20 or 30", but, he added, "we don't have very much evidence about cerebral palsy at 40, 50, 60 or 70 years of age". Asked if he would suggest a life expectancy equivalent to that of a normal person, he said, "the truth is I don't know". In cross-examination he gave qualified agreement to the proposition that "the life expectancy of a cerebral palsy person is markedly lower than the average person". He agreed that factors such as Megan's freedom from epileptic seizures since the period immediately after her birth was another favourable factor for longevity, but this view was qualified by his prognosis as to the risk of future epilepsy which he expressed in these terms:

"Given that she has come seven years without any seizures her risks are certainly lower than children with other types of cerebral palsy, however epilepsy can sometimes appear on the horizon during puberty, having previously been quiescent. I believe she has got a higher risk of epilepsy than the general population, which is one in a hundred to one in two hundred, I suspect her risk is less than fifty per cent and I think nominating a figure below that would be -- would involve some guesswork but I suspect something in the twenty to thirty per cent range might be an approximation that many would accept."

Mr Tree suggested that the lack of any clear evidence as to the extent to which Megan's life expectancy has been shortened provided a compelling basis for departing from the "highly mathematical" approach urged upon me by counsel for the plaintiff, and adopting in lieu the so called broad axe approach which has been favoured in some cases where a mathematical basis of assessment is hampered by too many unknown or imponderable factors.

Mr Blow QC, on the other hand, drew my attention to the very relevant fact that even if I were to assume that Megan's life expectancy had been diminished by as much as fifty per cent, the discount multiplier of 766.1 which had been employed by counsel for the plaintiff in making assessments of future loss on the basis of average life expectancy would only reduce to about 700. It is easy to lose sight of the fact that the value of future loss which is postponed several decades diminishes rapidly. If plotted in graph form, this decreasing value would, no doubt, be shown as a parabolic curve.

A further consideration which militates against Mr Tree's submission arises from the principle acknowledged in Thurston v Todd [1966] 1 NSWLR 321 that an injured plaintiff is entitled to receive compensation "upon the basis of her needs upon a reasonably foreseeable possibility of her survival ... A plaintiff in this situation has the benefit of the maxim omnia praesumuntur contra spoliatorem" (see also Proctor v Shum [1962] SR (NSW) 511 at 516 - 517). This is not the same as saying that any ultimate burden of proof falls upon the defendant in such a situation as the present, but is rather a specific example of a situation in which an evidentiary burden arises for a defending tortfeasor to discharge if it is suggested that the plaintiff's injured condition produces a positive monetary advantage for the defendant. (See Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 as explained in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164).

In the result therefore, although I think it likely that Megan will not live as long as most female children of her age, I am quite unable to quantify that loss of life expectancy or to make an appropriate allowance in respect of it other than by including it as a component in the general discount for contingencies to accommodate the potential saving on various costs which might otherwise have been necessitated in the autumn of her life.

Another matter directly affecting many of the items comprised in the plaintiff's claim is Megan's capacity to understand how to use and apply some of the aids and facilities which it is contended she should have. The defence argues that in view of her present limited development it may be inferred that she will never have the ability to use some of the equipment which has been claimed, such as motorised wheelchairs, computers and the like.

"This child is markedly retarded for her age. ... It is unlikely that this child will ever be able to care for herself in the foreseeable future. She will require constant care and devotion on the mother's part. She can be improved by intensive physio, speech and occupational therapy but to a limited extent and never reaching the stage of normal independent existence."

In a further report dated 13 July 1993, Dr Newman said:

"Her mental development to date is grossly retarded. If one had to make an assessment it would barely be that of a 6 - 9 month old infant. What her future mental development may reach is hard to say, as with modern teaching aids one cannot assess what is locked up until the child is exposed to these in the distant future. Suffice it to say normal schooling would be completely impossible, and even attendance at a school for retarded children, such as Talire would be beyond her."

Dr Vicki Anderson, a paediatric neuro-psychologist, saw Megan in May 1997. She found that Megan was unable to participate in formal psychometric evaluation, but she was able to make a useful assessment based on data supplied by care givers, relatives, observation of Megan at school and at home, and an administration of Vineland Adoptive Behaviour Scales. Dr Anderson noted that Megan was able to maintain eye gaze when working on cognitive tasks with her teacher. She also noted that Megan was able to respond, apparently appropriately, to commands and questions, although her language skills were very limited. Megan has an understanding of some abstract concepts such as yes/no, in/out, on/under. She has a capacity to count from 1 - 5, can discriminate colours, and select colours from a group. She appeared to enjoy watching drama and games involving lots of action and was able to use an electronic switch and scanner device to make limited choices in the classroom. There was no evidence of understanding letters or literature. Megan is able to maintain concentration on simple tasks for up to twenty minutes, but overall Dr Anderson found Megan's memory and learning skills difficult to assess. She said:

"At a basic level, Megan could distinguish familiar and unfamiliar people, and appeared to recognise tasks she had previously performed, or video characters she saw regularly. Her teacher noted that much tuition was focused on repetition of information and concepts, and that Megan appeared to require a great deal of repetition to retain even simple information. Further, her level of function within the classroom was well below age level, and reports suggest, at a pre-school level. ... She is able to interact positively, using non-verbal yes/no response. Reports suggest that she knows her own mind, and lets those around her know if their interpretations of her needs are inaccurate. Evidence of frustration is described, but her behaviour was generally noted as manageable."

Dr Anderson was of the opinion that Mrs Fay Grimsey's assessments of Megan's level of functioning could not be relied upon as they were "unrealistic". I must say that having heard Mrs Fay Grimsey give evidence on these matters myself, I formed a similar opinion. I regret to make this observation because Mrs Grimsey was an articulate, intelligent witness and is obviously devoted to Megan but unfortunately that very devotion has, I think, created the rose-coloured spectacles through which she appears to see her little granddaughter's development.

Dr Anderson formed the view that Megan functions overall in the "severely deficient" range and, unfortunately, her severely restricted physical capabilities substantially hinder her in demonstrating cognitive and adaptive abilities "which may well be at a higher level than indicated by the Vineland scores". Nonetheless, Dr Anderson was fairly firmly of the opinion that "it is highly unlikely that Megan's cognitive abilities are not ... severely impaired" and further "it is highly unlikely that they will improve to normal levels". Under cross-examination, Dr Anderson made this observation:

"Within the frame of cognitive ability within the area of language she shows some ability and certainly, as I've said, I still think that there's severely delayed abilities and I don't want to argue that they're normal --- if you think about the normal development of language, understanding the single step instruction is something that you would expect --- of an early pre-school period. Understanding the two step instruction is something that you would more expect of a five year old or a six year old. We know that from normative data on language testing with children so I suppose what I am indicating there is she isn't up to the level of the five or six year old child with her language comprehension but she's better than an infant that can't follow a single step instruction so that's where the intelligence issue comes in."

She said, "I think her social and her receptive language skills ... would be her stronger areas of ability". She also said:

"In terms of what we know about brain development and parallel cognitive development, the expectation for development is [that] it will continue until about age fourteen or fifteen. The brain continues to develop until that age and along with that grows cognitive development; so cognitive skills continue to develop dramatically so Megan still has an opportunity to develop skills for the next seven years. We know from out studies on normal children that there's a massive development in that time. What we don't know and what you can't predict clearly is what will happen in children for whom there has been some kind of brain damage."

She said she would expect Megan's level of development to be at a lower gradient and at a lower ultimate level when compared with other 14 year olds. She felt unable to predict that Megan would be able to use technology for employment or other purposes, but equally she felt unable to predict that she would be unable to do so. She also felt unable to express an opinion as to whether Megan has or will develop some insight into the severity of her disability. If she were to do so, of course, she may develop chronic depression, a condition often found in severely disabled children or teenagers who have an awareness of their predicament.

Dr Collins has seen Megan on two occasions, once in 1992 and more recently in June 1997. As to his initial examination, Dr Collins said:

"I found it difficult to comment on her intellectual function at that stage. It is notoriously difficult to evaluate understanding and comprehension in someone with severe motor impairment, but I was concerned that, the reduction in her head growth rate implied that -- the probability was -- the insult or the damage was sufficient that there would have been some other delay in development. ... There are multiple levels at which that problem could arise. Certainly, given the difficulty she had in controlling movements of her limbs and trunk, and her drooling, that implied that there was likely to be some impairment in motor control of the muscles involved in articulation of the lips, mouth and tongue, but it was also possible that there was some more specific language delay due to damage to parts of the brain involved in formulating language."

Asked as to her capacity to operate an electronic wheelchair, Dr Collins said:

"Her mobility is likely to be either by a manual wheelchair -- as to whether it would be an electric wheelchair I find that difficult to answer. To work an electric wheelchair you need firstly some hand skills to operate the switch, but you also need some awareness of your environment and surroundings so that you go in the right direction. I don't think at this stage we've got evidence whether she's got those skills, so she would be, in my opinion, most likely dependent on a wheelchair managed by somebody else -- dependent on others for her mobility."

Whilst a little reticent in expressing opinions as to Megan's future intellectual function, Dr Collins, when asked as to Megan's likely capacity to manage her financial affairs, made the following observation:

"If we take this as part of a more general look at her intellectual abilities, if we say that now she is seven and the best we could say is that she has got abilities somewhere between a quarter and a third of her age level and if we assume that she makes progress at this slow rate through to somewhere in her teens, I think it is rather unlikely she would acquire the mathematical skills sufficient to manage her own finances."

Megan is "in no way like a normal younger age child" and all that can be done within the context of the comparative process is to compare some specific functions and capacities which she exhibits with the same functions of other children at varying times of life. Furthermore, non-disabled children have varying skill levels at the same age in areas such as art, puzzle solving and verbal expression.

Asked in cross-examination to nominate her best skills, Dr Collins mentioned her ability to choose two red balloons from a range of balloons and her capacity to choose between two objects when shown the name of one of them, even though each of these exercises was not always performed with 100 per cent reliability.

The most optimistic views of Megan's future intellectual capacities were given by Ms Jennifer Sammons, an experienced occupational therapist who has had many years' experience dealing with and assessing the needs of severely disabled children, and in particular, children with cerebral palsy. She has seen Megan on three occasions -- once in April 1995 at Huonville and again on 18 and 19 May 1997 at Quindalup. She prepared an extensive report which, with minor deletions to excise inadmissible material, was admitted into evidence as exhibit P8.

Ms Sammons suggested (inter alia) that Megan would require computers for learning, both at home and at school, and that she may even engage in short course tertiary education courses in later years, although she said "It doesn't necessarily suggest that she has to have the exact cognitive abilities to be eligible for such classes but for instance it's possible to audit some claims as part of a community programme". She suggested further that Megan had the present capacity to use motorised wheelchairs. When pressed by Mr Tree in cross-examination, she said that she "would probably disagree with the proposition that Megan's cognitive abilities are severely impaired."

Mr Tree invited me to reject Ms Sammons' opinion upon these issues as they were either in direct dispute with, or inconsistent with, views expressed by other professionally qualified witnesses.

However, I am of opinion that her views are not so easily ignored. As Mr Tree conceded, she was an impressive witness when giving oral testimony in the witness box. Furthermore, she provided a very detailed and thoughtful written report which was tendered in evidence. In addition, she has had considerable empirical experience in seeing how disabled children have been able to improve and develop their skills if provided with appropriate resources. Finally, the assessments and opinions which she expressed on most other aspects of Megan's condition were in accordance with those expressed by other witnesses.

It is easy to lose sight of the fact that Megan is only 7 years of age at the present time. Her development has been slow and uneven, but she has a long way to go and is likely to continue developing, albeit at a slower rate and to a lower level than the average child of that age until her mid to late teens. However, as Mr Blow QC pointed out, not only is it difficult to assess her present level of intellectual or cognitive ability due to her grossly deficient motor skills which affect all avenues of communication, including speech capacity, but her condition has imposed severe experiential limitations upon her so that her range of stimuli have been fragmented and are considerably less than may be expected in the case of the average 7 year old. She has had only limited access to electronic or mechanical aids, but has shown a capacity to operate the scanning device at school quiet effectively.

I am satisfied that Megan does not have a present ability to operate a wheelchair and I am also satisfied that she will never be able to operate one on the highway, but the evidence of Ms Sammons at 285 - 288 is worth reproducing in full as it exposes the basis upon which she has expressed her opinion that Megan has a "good chance" of learning to operate both a wheelchair and a computer:

"Q In the next paragraph in the second last line you refer to a need for a motorised wheelchair with scanning control, can you explain what scanning control is please? A Yes, your Honour, normally a wheelchair is operated by means of a joy stick control. In Megan's case she won't have the hand function required to be able to do that. The scanning switch control involves having a switch that's operated by some part of her body to then send a signal to a control box. The control box will then scan between four different directions of forward, backwards or turning to the left side or turning to the right side. When the scanner actually indicates the direction that she wants to go she then must press the switch again with her body part to make the chair then move in that direction. Q What sorts of body parts do individuals with cerebral palsy use to activate such scanning controls? A Some individuals use their hand to contact a switch, some individuals use the back of their head, some individuals might use a knee coming up underneath a tray with a switch mounted under there, it varies according to the individual's physical skills. Q And from what you've seen of Megan, do you have any opinion as to what her chances are of one day being able to operate such a scanning control? A I believe that Megan has a good chance of being able to use a motorised wheelchair, it will depend on her developing better access to a switch. I think at the moment she's using large movements of her arm to reach out and make contact with a switch, however, there are many different methods of developing access and I think that what might happen with her is that her arm will need to be stabilised when it's actually strapped down and she might learn to use her elbow or some other part of her arm. She may also have an opportunity to develop skills in using her knee because she's able to kick so they are still areas that haven't been explored with her. Once that particular area of control is identified, the switch site, and the movement that's the best movement, I believe that she is more likely than not to be able to drive a wheelchair in some capacity independently. Q Can you say anything about. how well she might be able to drive a wheelchair. A Because she has athetosis which is the involuntary movement disorder it is difficult for her to control her movements in a smooth co-ordinated way. Children with athetosis tend to be quite tough on motorised chairs and their movements may be more jerky. I believe that she will be able to use the wheelchair in less restricted spaces in a functional way. However, if you put her in a narrow corridor that might be very difficult for her but in the right architecturally designed environment such as a home environment she should be able to use her chair to get from one room to the other et cetera, and she should also be able to use her chair in the community. However, if she is in an environment, where it's quite a restricted environment then she might need more assistance from an attendant carer to take over control of her wheelchair. So it will just depend on which environment she's in. Q How do the skills needed for the control of a motorised wheelchair through a switch compare with the skills needed for the operation of a computer or a communication device through a switch? A The skills are the same. Once you have a reliable site of your body to use in a movement that you can use to access a switch that then can be transferred to any device, whether it be a motorised wheelchair, a communication device or a computer or an environment control unit. Q Can you say anything as to the development of technology for motorised wheelchairs? A I think that we've come certainly a long way over the last ten years in particular with the advent of switch operated scanning systems. There's something that I am quite excited about in terms of further development with the wheelchair itself which hasn't reached commercial level yet but in the UK they have a chair that's sort of called a bump and go chair where if a person in a wheel-chair bumps the wall for instance the chair will actually back up one or two feet so it takes the person away from the wall again. I have a feeling that with radar technology and some of the other technological advances that we'll get to a stage where Megan might drive a chair with a switch but if she starts heading for a wall that the chair will detect that obstacle and actually will slow down and allow her to make adjustments to that and I think that with that kind of technology her ability to drive a motorised wheelchair will improve greatly. Q Do you have any experience with individuals that you've known as children who have developed the capacity to operate such switches and drive motorised wheelchairs? A Yes, I have."

These opinions do not coincide with those expressed by Dr Collins and Ms Xenitelis but despite the very considerable expertise of both of these witnesses, their evidence did not disclose that they had the same degree of direct involvement with the use and adaptation of mobility aids to assist the disabled as Ms Sammons has.

Nonetheless, there is no certainty that Megan will be able to use a motorised wheelchair and a moderate contingency discount must be applied to that part of the claim in recognition of this fact. A somewhat lesser discount should be applied in respect of computers and other devices, however. As Dr Collins suggested, a wheelchair is required to move about in a varying three dimensional environment and it seems to me that unless entirely controlled by a radar type system, the operator will always require perceptive and judgmental skills which are not necessarily required when operating a computer at a table or work station. Mr Tree conducted a vigorous cross-examination of Ms Sammons and, in the course of doing so, challenged her assessment of Megan's capacity to use the various mechanical and technological aids claimed. The following passage reveals both the nature of his attack and the basis of Ms Sammons' response to that attack:

"Q You keep on saying 'could' and similar words, but the reality is that we are in a terrible position trying to assess the future position of a seven year old girl at the moment, are we not? A It's difficult. I mean, it is and one can't deny that there is a certain amount of crystal ball stuff, but in terms of what I've put on paper it's not going to make a big difference. Really, what I've said is that, you know, she's going to need these devices, she's going to need these services. It wont change whether she can read, you know, the Encyclopaedia Brittanica versus being about to read a simple pre-school level book or a primary school level book. These things are still going to be needed because she still - we know that she has opinions, we know that she's strong in her personality, we know she wants to say stuff, we know she's frustrated. If she didn't know about these things she would probably sit in a wheelchair and not protest. But we know that she's very aware of where things are at and we know that she's going to want to make as much impact and have as much control over her life - so, all this equipment and that is going to really give her that opportunity and I think that - that that can't be denied and that time will tell and show us what she actually will achieve. Q Yes. And that's the nub of your opinion, is it not, give her the opportunity and we will find out whether she can use it or not later? A I think it's more like - give her the opportunity and let's see how much she can show us. She may go on to do things that we didn't even dream of. Q Which is to say, your report is based upon maximisation of opportunity, not an assessment of necessary needs? A No, I believe that my report is based on necessary need of an individual to have an opportunity to express her self in day to day needs, to express her opinions - if we are talking about communication. So these aren't things that are just, sort of, extra tack on, these are basic things. Using a computer to - to hit a switch to use a computer to actually put something on paper versus not being able to do anything but make some marks on a page. So, it's, you know, it's a case of where it goes, but it's - there's a, sort of, core need here that can't be, I think, denied on any basis of what the outcome is with her intelligence or her cognitive skills. Q If we return back to the focus that I was asking you to direct your mind to a few moments ago, you are concerned about maximising opportunity? A I'm concerned about giving her the core opportunity to move, to communicate, to have an impact on her environment. And within that to maximise her opportunities to have the best quality of life that's possible, given what would have been had she had not have this brain injury. Q But at the end of the day, to assess whether or not she will be able to utilise the technological opportunity that you're suggesting, involves a crystal ball exercise. A The only crystal ball part of is whether she will write a thesis on her computer or whether she will use the computer to generate a form letter that says 'Hi, - you know, 'I'm doing well', or whatever. It's that sort of qualitative thing about to what extent she will output that's in question. Q The extent to which she's likely to use these technological devices depends upon two things does it not, her cognitive ability and her motor skills? A It depends on cognitive, motor, her motivation, her opportunities in life to have an environment where she is asked to give an opinion, etc cetera, so there's a number of factors and all those things together contribute to use of the equipment. Q At the risk of reharrowing ground we've already been over, you have assumed her current level of intelligence based upon a couple of things? A I've assumed a level of intelligence based on reports from carers and my own limited but in the area of receptive language assessment of her, yes. Q And you didn't have the benefit of a psychological report in assessing that? A I didn't but I've been working with children like Megan for 21 years and most of the time we didn't have psychological assessments because they weren't seen to be always appropriate for kids with that level of disability. ... So, you know, a lot of it goes on your experience and the output that that child will give you. ... There's another area that I'll talk about that will probably entertain you and that is just, there's a feeling of, it's when children look at you and the way they respond to you when you're actually with them, in terms of their eyes and how they respond to subtle humour and things like that that are also used in establishing whether you think the person has got a certain base level of intelligence that gets used too. Q And that's a skill that I might have, that you might have, neither of us have been trained in presumably? A It's a skill I think you pick up, particularly in working with severely disabled people and knowing how to put them at ease and reach them such that they will really try to communicate with you as well as that factor too. Q As to her future cognitive ability, again you didn't have the benefit of a psychological report or assessment? A No, I didn't at that time of writing my report. Q And moreover we then rely simply upon your, not trained, but 21 years experience of this? A I guess coming back to what you're relying on in my report is my experience with the use of equipment and in communication areas, in computer use, written and verbal communication, in wheelchairs, etc cetera, and I think that again I'll just say that I don't think what level of intelligence she's at exactly is going to have a significant impact on that equipment that she needs."

If Ms Sammons' views expressed in this way were to be put against scientifically conducted tests or opinions of a contrary nature expressed by someone with similar experience but significantly better scientific qualifications, there may be some reason for regarding them with a certain amount of circumspection, but the views of other witnesses, notably Dr Anderson and Dr Collins, did not reveal that any of them had an awareness of the range of devices which have been developed and applied to new situations over recent years. This, after all, is the special area of expertise that Ms Sammons possesses. No doubt there is a certain amount of overlap between her area and that of Ms Xenitelis, who also has doubts about Megan's capacity to ever use a motorised wheelchair and it is Ms Xenitelis' views, rather than those of the two doctors, which have caused me to hesitate before embracing those of Ms Sammons but, after carefully considering the opinions of these two impressive witnesses, I have come to the conclusion on the balance of probability that Megan will be able to learn to use a wheelchair, as well as the other equipment mentioned and, accordingly that an allowance should be made for this on the basis already explained.

Ms Sammons and Ms Xenitelis were not of the same mind as to the need for a spa pool and/or a hydrotherapy pool. Ms Xenitelis said this:

"Q Thank you, Now in this first report you made some recommendations in relation to hydrotherapy, can you explain the role of hydrotherapy that you would propose in relation to Megan? A Hydrotherapy is one of the most important forms of therapy for children with cerebral palsy and the reason for that is that the water's warm for a start and so we all know we get into a warm bath we feel relaxed and that's the first thing that you try to get out of putting a child in a hydrotherapy pool. Secondly the techniques that we use are very fluid, flowing movements and they help reduce the spasticity or that hypertonis that I spoke of earlier. Now the whole aim of that is to teach children with cerebral palsy to reduce the amount of tightness that they have in their muscles so then if they don't have as much tightness in their muscles, (1) they can use them more functionally and secondly they're less likely of developing severe contractures. Q Now you've said access to an appropriate heated indoor hydrotherapy pool is recommended. Are you able to say or what in your view would be the ideal amount of use of a hydrotherapy pool for Megan? A A number of times a week and on the weekends. I think that it's very important that a child does receive quite a substantial amount of hydrotherapy. Unfortunately due to resources and centres closing at four o'clock and whatever, children often miss out on the after school hours and unless they can get to a public hydrotherapy pool, but the treatment would be a couple - two times during the week and maybe once on the weekend. Q All right. If Megan were living half an hour's drive away from the nearest hydrotherapy pool that she had access to can you say what impact that would have, if any, on her - on the benefits she might get from hydrotherapy? A Well she'd be tired, all kids are tired after school and if she had to travel after school half an hour to get there, feeling quite hungry, knowing not to eat something before you hop into a pool, the time it takes to undress her, dress her, half an hour in the pool or an hour in the pool, she would be very tired and probably wouldn't perform activities that you would want her to do in the pool. I'm sure that there would be some benefit but the benefit wouldn't be as great as if she was doing it at some other time when she was more relaxed. It doesn't have to be very big, I have recommended one that is about four metres by three metres. It needs to be big enough so you can walk up and down and perform some nice flowing movements with the child. It needs to have grab rails around the pool, so there are things that specific to a hydrotherapy pool that wouldn't be at a local pool. There has to be a hoist, it's too dangerous not to have a hoist, especially if you're going into the pool about three times a week - you would need a number of people to be on standby to lift the child in and out of the pool and then the carers would end up with back problems. So there are special requirements for a hydrotherapy pool Q And if Megan were to have access to a hydrotherapy pool at any time that - well, twenty-four hours a day, several days a week, how much hydrotherapy would you regard as appropriate from now for the rest of her life? A Oh, I think that it's probably more - it's important now that when they're older, say when she turns 18, 20, working In water is an easier medium because one - firstly the water is buoyant, the person is buoyant in the water, and you can - they can actually do a lot more in the pool than what they can do on land. And it's a shame that a lot of people don't access it as much as they should. ... But it's probably the most effective form of treatment. Q To what extent could someone who isn't qualified as a physiotherapist assist Megan with hydrotherapy. A You would need a physiotherapist to assist, to be there in the pool and to work out a program. ... From there you can teach a carer to do it."

Ms Xenitelis considered a spa to be unnecessary and without any beneficial value.

"A I see that the spa has two major benefits for Megan, one is that the warm water action and the vibration from the water jets can have an impact on relaxing her muscles. The other thing is that vibration just as sensory stimulation activity is something that Megan really responds well to. I am a sensory integration therapist so I look a lot at how sensory input can be used to stimulate the arousal level or level of alertness of people and to also act as a calming action on them if they're feeling distraught about something, so it's got a sensory benefit as well as a benefit to her muscles. I've had experience of prescribing spa baths and choosing spa baths and having them built into existing homes of children with cerebral palsy. I also understand that having a spa is part of some of the programmes that are run in Melbourne where children may go to a spa pool for one of their sessions during the week. Q Are you able to comment on the proposition that a spa would be a reasonable substitute for a hydrotherapy pool? A I believe that the only thing a hydrotherapy pool and a spa bath would have in common is the warm water, but otherwise the spa bath is a fairly restrictive environment. There is no opportunity to move. In fact children who are put into spa baths and who have severe disability like Megan need to be stabilised in the bath by using a bath seat. So, really the spa bath is not going to offer her the ability to be moved and manipulated by a carer through the water as would happen in a hydrotherapy pool.

HIS HONOUR: So, the one is no substitute for the other?

WITNESS: Yes, your Honour. That is how I feel."

As Ms Sammons has had beneficial results using a spa, I think that Ms Xenitelis' views should not be determinative of this question. I accept Ms Sammons' opinion on the matter. Accordingly, I propose to make an allowance in respect of both a hydrotherapy pool and a spa bath in the projected purpose built home.

Mr Tree submitted that whilst the plaintiff may have demonstrated a need for hydrotherapy from time to time, it was only on the limited basis of once or twice, or possibly, three times per week, and it could be provided to the plaintiff at the facilities available at Rehabilitation Tasmania in New Town. Mr Blow QC on the other hand referred to the evidence of Ms Xenitelis describing hydrotherapy as one of the most important forms of therapy for children with cerebral palsy as it helps reduce the degree of hypertonicity in affected muscles which, in turn, limits or eliminates the onset of severe contractures. Ms Xenitelis also pointed out the problems associated with attending a public facility in Hobart for someone who is a resident of Huonville and the limited hours during which such a facility would be available after school hours.

Bearing in mind that the proposed hydrotherapy pool is intended to last a lifetime, and that there are travelling difficulties in commuting to Hobart to use facilities here, I do not regard the inclusion of the cost of a hydrotherapy pool in the damages as an unwarranted luxury. It cannot be overlooked that if such a facility is available as an integral part of the domestic environment, it is likely to be used more often than the minimum number of weekly sessions recommended by Ms Xenitelis. Obviously the more it is used the more beneficial it will be. It is plainly virtually impossible to overuse such a facility. In my opinion it is a reasonable need and should be allowed.

Describing his findings upon his first examination of Megan in 1992, Dr Collins said:

"When I examined her at that stage she was small, she appeared alert, her head circumference was half a centimetre below the second centile for age, having been on the same centile at six months but on the fiftieth centile at birth. Fiftieth centile means average, half the world is bigger, half the world is smaller, and most children follow the same centile that they're on at birth. Occasionally they may accelerate, be in a higher channel if one of their parents has a large head but they don't usually fall away from that centile unless there's been some abnormal process affecting brain development.

Well, ninety eight per cent of people are above the second centile. Now some normal individuals may be on a second centile and the further your head is below it the greater the chance that there may be some abnormality. In Megan's case the significant thing is not so much that her head circumference was on the second centile but that she started life with a head circumference which was average and in fact it decelerated over that first six months, consistent with there having been some event which affected brain growth and hence head growth.

At that time she had a left convergent squint, she dribbled intermittently. She made what I described as cooing vocalisations by which I mean they were predominantly vowel sounds. She seemed to respond to her mother. She followed my face. The tone in her trunk was reduced or putting it in plain English, her trunk was rather floppy and when held prone her head flopped down below the plane of her body, she couldn't hold it up When she was placed prone on the examination couch she didn't lift her head up. When I placed her in a sitting position she had no sitting balance, in other words, she would fall over. But if I held her sitting she could hold her head upright. And similarly when I held her in a standing position there was a marked increase in tone by which I mean her legs, limbs, particularly her legs became stiffer, she extended her knees, she pointed her toes like a ballet dancer, she adducted her hips producing what some people call scissoring, that's to say that the legs are so tightly pulled together at the hips that they cross over each other. I thought her hand posture was abnormal at that time and that there was some writhing movements which are sometimes called athetoid movements in her upper limbs. Her right hand was tightly fisted, her left hand was extended. She did reach for a block but with a crude grasp, she wasn't able to hold it between her fingers. There was a suggestion that she had a residual asymmetric tonic neck reflex, this is a reflex which is normally present in babies in the first three to six months of life whereon turning the head to one side the arm on the side to which the head is turned straightens at the elbow and the opposite arm flexes. If I can demonstrate, it's rather like this which is referred to as the fencing posture. And a persisting primitive reflex implies some damage or dysfunction of motor pathways in the brain. Finally and perhaps a not very definite observation, I thought that her right optic disc appeared pale, this means I attempted to look in through her pupil at the back of her eye where we see the optic nerves end on appearing as a circle and that this did appear to be pale, possibly implying some damage or dysfunction but this was not an adequate examination and would have required an opthalmologic assessment with dilated pupils to confirm that.

At that stage I thought she had evidence of severely delayed and abnormal motor development to which the term 'cerebral palsy' could appropriately be applied and at that stage I saw two types of motor abnormality, the one that struck me most at that time was spasticity affecting her legs predominantly, but she also showed these movements which I refer to as athetoid affecting her upper limbs as well and if one - looking at the normal sequence of motor development in babies she was not yet able to sit independently and this is something which is normally achieved by about six months of age."

He defined some of the terms used in the foregoing passage as follows:

"Spasticity refers to excessive contraction or tightness or tone in muscles which tends to be sustained fairly continuously if the individual is in a particular position, although it may vary with posture. You will note that both yesterday and five years ago when I put Megan in the upright position her legs became excessively stiff and she extended her knees and crossed her thighs and pointed her toes, so that this spasticity is sensitive to messages from the balance organs in our ears whereas - and in one position it tends to stay the same - where the term athetoid or sometimes distonic is referring to involuntary writhing movements which may effect not merely the muscles of the arms and legs but sometimes the face and neck and trunk. My reference to the fact that she had a smiling appearance, although I can't be sure what it means, it may just be she's a cheerful person but it is also true that individuals with athetoid cerebral palsy may have a smiling posture due to involuntary movements of the facial muscles. The final point I suppose which is perhaps an academic one, is that one might expect other things being equal that an individual with athetoid cerebral palsy, they may have more preservation of intellectual function than in a child with spasticity if that spasticity effects the same limbs. In other words a child with spasticity in all arms and legs. It may well be that we've got problems affecting the cerebral cortex, the outer surface of the brain on both sides. So, while I would acknowledge that we assess Megan Grimsey's intellectual ability by what she can do, there is a consistency between the predominant type of motor disability she has and the relative preservation of some of her intellectual skills."

He saw Megan again the day before giving evidence and described her present condition in terms which, in my opinion, give a clear and concise overall picture of her present state. I am aware that much of the description includes material from third parties which, strictly speaking, cannot be used for hearsay purposes but, as all significant aspects of that material contributed by other persons was verified by independent testimony, it would be mere pedantry on my part to exclude it, particularly as I accept that Dr Collins' rÈsumÈ is an accurate recitation of the facts as I am prepared to find them:

"In terms of Megan's motor ability - she remains severely disabled. She is able to roll. She can also, if lying on her back inside a room, push her feet against furniture to propel herself away from the furniture and then continue to roll. But she still cannot sit without support. She cannot stand without support, although she can be assisted to stand if she's placed in a standing frame with appropriate footwear. And she cannot walk, with or without assistance. She has a variety of equipment which is shared between her respite accommodation and her school - a manual wheelchair pushed by an adult, a toilet or potty chair which she's placed on for toileting, a standing frame and another table with a pad on which a headrest can be placed so that she won't bang her head if it flops forward. It's also used to support her communication equipment. She has very frequent involuntary movements. Her hand skills are limited. She's been provided with a device called a switch, which I have not seen but which was described to me, which has a pad approximately fifteen centimetres by fifteen centimetres which she operates with her right hand. She can grasp an object which is placed in her hand but she cannot show functional hand skills such as - for example grasping a piece of food to put it to her mouth. She's not able to do that.

Her communication via the oral route is very limited. She is believed to say the words 'no' and 'more' but these are only intelligible to those who know her well and sometimes with some clues from the context. She indicates 'yes' and 'no'. To indicate 'yes' she might smile, and if she does not want something or indicates no she purses her lips and pulls her head back. One of the devices which is attached to this large switch pad I referred to is what is known as a scanner, an electrical device in which a moving arrow points in sequence to four to six pictures of objects and she is believed to show some consistency in making a choice from these objects - sometimes - because of her limited hand skills she may not release her hand from the switch pad in time and the pointer will indicate an object which is not her intention to point to. In those circumstances her care givers are able to ask her a series of 'yes' 'no' questions to clarify what she wants. She is able to make a choice both from objects in front of her, but also from being offered a multiple choice list, orally - 'is it this, is it that, is it this other thing' and giving a 'yes' 'no' response to that. Perhaps one of the higher level comprehension abilities which was reported to me but which I have not seen myself, was that if a number of small coloured balloons are in front of her, Jill Gatenby stated that if she said 'find me two red balloons' she was able to identify the appropriate number and colour of these objects. Another example of her comprehension of the spoken word is that if Jill or another carer asks her to adjust her body position, for example, to sit up or put her arms on her lap, or to hold her head up, she will do this, and I did see a brief example of that, when I saw her yesterday. In terms of her vision it is thought, that she can recognise faces about two metres away and she watches videos on a television screen from about the same distance. In terms of feeding, I have already alluded to the fact that she is not able to take food from plate to mouth by herself, chewing is limited to something of the consistency of a sausage and if she is offered a sandwich with soft contents it has to be quite a small piece, perhaps something like 1.5 by 1.5 centimetres and I have not seen her eating, but there is some discussion between the two carers - ladies I saw yesterday, as to how much chewing and how much sucking goes on. She has a problem with tongue thrust, by which I mean when something is placed on or around her mouth, there is an involuntary protrusion of the tongue, which complicates the feeding process.

Drinking is done through an ordinary cup, so she doesn't need a bottle, she doesn't need a cup with any modification but the carer needs to stabilise her jaw by hand while giving her the cup to drink from. The choking during feeding happens only very occasionally If she drinks very fast and she is very thirsty, but this seems to be a very rare event. I asked about it specifically but it does not seem to happen very much at all. She does not dribble - to any degree - now. These skills I have told you about, drinking, taking food, responding, and these various choice making devices really only occur if she is in a wheelchair and her position is stabilised both in terms back to front movement by the back of the chair and possibly a strap in front of her and side movement by padded material on either side of her chest. In terms of toileting - she sometimes makes her needs known, by which I mean she displays agitation, distress, a need to communicate something and the carers will say, 'Is it this - ?', 'Is it this - ?', and she may give a 'yes' response indicating that she wants to go to the toilet and in fact they do ask her every hour at her respite centre and at school but there are certainly what you might call 'false positives' - in other words she will say she wants to go to the toilet but she produces nothing when she goes there. This being interpreted by her carers as the fact that she perhaps enjoys the individual attention - being taken to the toilet entails.

So, to put this in context, most of her being kept clean and dry is achieved by regularly placing her on the toilet - every hour. She co-operates with being transferred from her wheelchair to the toilet chair, taking weight predominantly through her left leg during this process.

So she doesn't have to be completely lifted to transfer her to the toileting chair. I asked the two ladies who know her whether they'd seen progress in the last six months and this seems to have been predominantly in the area of social development and interest. Last year at her school, while she appeared to enjoy the contact of the other children, she wouldn't initiate contact with them, whereas she might roll towards a child - not any specific child, but one of the children around her with her, make vocalisations. She is thought to have a sense of humour, she is thought to use more eye pointing, by which I mean intensely gazing at an object to indicate that is something she wants.

She shows interest in the attempts to help her communicate with this scanner device and Jill Gatenby, her integration aide, believes that she becomes interested and happy when she sees she is about to use it. The staff I spoke to yesterday have not seen any area in which she has gone backwards. Before I proceed to describe yesterday's experiences I might if I may, your Honour, just flag at this point that there are, however, some areas in which she is not doing quite as well as when I saw her five years ago. Perhaps I could return to that later. In terms of' her general health she hasn't needed any operations, she hasn't had any seizures, she hasn't required medication for anything other than normal childhood illnesses. She attends the Huonville Primary School full time. She is in the grade one classroom, I believe and she has the integration aide present throughout this time. She has access to other allied health professionals - speech pathology services every week or two and monthly contact with occupational and physiotherapy.

As on the first occasion she appeared small for her age and visually alert, by which I mean she made eye contact with me promptly and directly and seemed to be following me intently as I was talking with her, handling her and talking to her carers. Her head circumference remains small. I found it to be half a centimetre above the second centile on this occasion. She was extremely active and this was not a normal level of activity. So, she was flinging her arms and legs around in a very uncoordinated fashion. This was particularly evident if she was taken out of her wheelchair, and put on her bed. These movements perhaps became less if she was instructed to sit up appropriately and put into a particular posture in a wheelchair. So, as well as these gross flinging movements which were happening at the shoulder and hip, there were some finer writhing movements in her wrists and fingers. When she was lying on her bed her muscle tone did not appear to be increased as best this could be judged when she kept still. She needs to be still for one to make an assessment of muscle tone.

I thought there was some, and I've used some rather long words here, passive - limitation of passive dorsi flexion of her ankles by which I mean if I was holding her leg and attempted to push her foot up so that the toes were coming closer to the front of the shin bone it was not as full a range of movement as I would have expected to see, it was only slightly reduced and this resistance to putting the ankle if you like a complete right angle seemed not to be just due to her muscle contraction so I was left with the impression there was a mild degree of tightening of her Achilles tendons on both sides and that type of tendon shortening occurs in the context of spasticity where one group of muscles in this case the muscles at the back of the calf are exerting a greater degree of - having a greater degree of activity in contraction and the muscles in the front of the calf near the shin bone so I saw that as evidence that there probably had been some ongoing spasticity. And indeed this was confirmed when I held her in an upright standing position her posture changed in much the same way as it had five years ago with her hips adducted her knees extended and her ankles in extreme plantar flexion or, if you will, toe pointing, much like a ballet dancer. When I offered her small objects, on this occasion she looked at them with interest, she activated her arms and she hit in their general direction but she made very inaccurate attempts to locate these objects. As before, she had a convergent squint and apart from this slight shortening of her Achilles tendons I did not find any evidence of joint deformity either in her limbs or in her spine in terms of a scoliosis, she tended to have a rather smiling facial appearance throughout the examination.

Certainly she is very seriously physically disabled by, or putting it another way her motor - she's very disabled in the motor domain both in the sense of being able to move her body about to control the posture and movement of her body as a whole but also in terms of her ability to initiate and control finer movements of her hands, for example and perhaps if I can dilate on that a little, the level of motor ability she has is akin to a child who is perhaps around six months or more of age in that she can roll but not sit and barely reach for objects. The sort of motor disorder she had appeared to be as when I first saw her to have two components but on this occasion I was much more struck by the athetoid or dystonic involuntary movements which she was showing of her limbs and body and while there was still some evidence of spasticity particularly when she was held upright, this did not appear to be the predominant motor abnormality which was interfering with her, with her normal function. I thought on the evidence I had been given by the two ladies who know her, that she was showing a lesser degree of disability in her intellectual development as judged by her comprehension of speech than she was in the motor area and acknowledging that assessment of this is very difficult. In the presence of motor disability, nonetheless it appeared that she had some higher level skills in comprehension but still well below her age level without trying to be spuriously precise, I suppose it would be reasonable to say that the best skills she displayed were that of a child of perhaps 2-3 years of age, which is very low. It's between [Omega] and a third of her age level, but it's not as bad as her motor impairment."

He described Megan's lack of motor skills and physical incapacities as constituting her area of greatest disability. This was a view supported by all other relevant experts.

Ms Xenitelis is a physiotherapist with tertiary qualifications and a wide experience. She has worked with adults who have acquired brain damage, but for the last seven years she has worked exclusively with children and most of these children have had cerebral palsy. She saw Megan at her home in Huonville in April 1995 and again in May of 1996 at Quindalup. Her two comprehensive reports were tendered and received as exhibits with minor deletions and Ms Xenitelis also gave oral evidence, explaining some of the expressions used and elaborating upon her opinions. She also produced a very extensive and complete list of special equipment required by Megan, both now and for the future, together with an individual costing of each item and an indication of the frequency with which replacements will be necessary.

In her report following the most recent examination, Ms Xenitelis detailed a number of improvements which she found to have taken place. Megan can now maintain her position in a sitting posture for some time and can move up onto her flexed elbows when lying prone on the floor. She was also able to interact and play with dolls and had a greatly improved capacity to stand with assistance and take weight through her feet. Under cross-examination, Ms Xenitelis defended her prognosis in the following terms:

"I was quite surprised with the amount of improvement she's made, I think that she will improve quite well. I don't know whether she'll be able to hold her head in a correct position all the time but she will be able to focus a lot better in the future, may be track her computer when she's reading stories off the computer while keeping her head still and not having it bobbing about, she won't have perfect head control but she will improve and the only reason why she won't be able to improve and become like us because she does have that neurological damage that can't be fixed. ... I am quite certain that she will improve. I can't say exactly to what extent but I -- I've got the -- from my experience of working with children -- when they show that they can develop like that they usually keep developing. ... All children develop at their own rate and they're all different but I'm talking specifically about Megan. She has shown improvement and from my experience, if they start to improve like that you continue to work on that and work on the things that they've learnt and move on with that and she will move on."

Ms Sammons, who had seen Megan at similar intervals, confirmed improved body control and noted that she had better grasp and release control. On the basis of these improvements, Ms Sammons expressed greater confidence as to Megan's ability to be able to operate an appropriate switch control for the various equipment devices which it was claimed Megan will require. When placed in a position in which she can manifest her prowess, such as keeping erect in a standing frame, as demonstrated on one of the video tapes, Megan was clearly very pleased with herself and this tends to suggest that she feels a sense of achievement in being able to surmount some of her obstacles. One can never know for sure how far her motor skills may continue to develop but Mr Blow QC was plainly correct when he submitted that it is necessary to stimulate Megan and provide her with the opportunity for substantial repetition to enable her full potential to be realised.

This philosophy obviously underpins the methods adopted by the Hungarian Summer School which provided a significant benefit to Megan some years ago. As such an institution has now been established in Sydney, it was submitted that appropriate funding should be included in my award of damages to allow Megan to attend. I accept this.

It must be noted that Ms Sammons, who I have already described as the most optimistic of the experts in their prognoses for Megan's future development in this area, acknowledged that it will take Megan many years to develop improved control to operate a computer or augmentative communication devices. I accept Mr Blow QC's submission that notwithstanding these considerations, the only way in which the skills can be nurtured and improved, is by getting appropriate equipment now and practising upon it.

"Megan has demonstrated that she has the ability to learn to perform functional activities. I believe this has been as the result of the therapeutic intervention Megan has received through the Rehabilitation Tasmania Centre. In a relatively short time span, of two years, Megan has developed some very significant functions gains. These gains will be used in the future to assist with her developing a degree of functional independence."

Ms Xenitelis also said that the involuntary movements caused by athetoid cerebral palsy tend to slow down in late teen years and to be less violent by age 20 to 30 years. This does not mean that Megan will ever achieve independence, of course. There is unanimity that she will be dependent on attendant care for the rest of her life for most, if not all, basic personal and transportation requirements. The significance of the improvements which have been noted since 1995 is that they show that she is likely to develop a sufficient capacity to operate or control electronic devices to significantly improve her quality of life and to acquire knowledge, understanding and the ability to communicate effectively with other people.

By mid-1996, Heather's health had deteriorated again and her emotions were at a low ebb. Megan was spending more and more time at Quindalup while Heather was in a depressed state and unable to cope. As a result of the continuation of Heather's depressive illness, since August 1996 Megan has been an almost full time resident at Quindalup. She still attends the Huonville School, however, and is ferried back and forth from Hobart to Huonville by taxi each school day. Since last August, Heather sees her "a little". Heather says she is still emotionally and physically below par and, although she maintained a cool and articulate disposition in the witness box, I have no reason to doubt this assertion. Indeed, it is significantly corroborated by the evidence of Dr Burges Watson.

A question must arise, of course, as to whether or not Megan is likely to resume living with Heather and Lesley once these proceedings have terminated. Quindalup, although obviously providing good care for Megan for the last year, is not intended to be an institution providing other than short term respite care. Megan's presence no doubt deprives some families with need for respite care of that option. Furthermore, Quindalup is primarily intended for brain damaged children who have a degree of mobility and limited self-reliance. Megan has neither. Heather claims that with the provision of appropriate housing and facilities, full time paid help, therapies and counselling, she and her daughters will be able to re-unite as a family unit. It was urged upon me by the defence that in view of Heather's relinquishment of caring responsibilities over the past year, it may be inferred that she will be content to let Megan remain in institutional care, but I do not see that as being likely.

Heather is in a difficult and unenviable position. She has no husband to share her burden. Her elder daughter is on the threshold of puberty and will no doubt have the same problems and conflicts which seem to beset most teenagers. Her own health is indifferent and she is afflicted by the paralysing effects of chronic anxiety and depression. Her modest home is not her own and is plainly unsuitable for the specialised care required by Megan. The short term suggestion that the house next door may be made available to accommodate Megan and a carer has a certain amount of attraction to it, but it is far from ideal. Compensation to be awarded in these proceedings cannot be assessed by reference to benefits or advantages which may be conferred upon Heather or Lesley. The focus must be steadily upon Megan's needs. But it seems to me that it is neither legally nor morally defensible to look at ways in which economies may be achieved and then to justify them on the basis of the plaintiff's obligation to mitigate her loss.

As was said by a unanimous Supreme Court of Canada in Andrews v Grand and Toy Alberta Ltd [1978] 2 SCR 229 at 242:

"Contrary to the view expressed in the Appellate Division of Alberta, there is no duty to mitigate, in the sense of being forced to accept less than real loss. There is a duty to be reasonable. There cannot be 'complete' or 'perfect' compensation. An award must be moderate and fair to both parties. Clearly, compensation must not be determine on the basis of sympathy, or compassion for the plight of the injured person. What is being sought is compensation, not retribution. But, in a case like the present, where both Courts have favoured a home environment, 'reasonable' means reasonableness in what is to be provided in that home environment. It does not mean that Andrews must languish in an institution which on all evidence is inappropriate for him."

Of necessity, Megan's choices must be made by others, at least for the foreseeable future. She could be placed in an institution of one kind or another for the rest of her life and cared for by good and dedicated people. She may be happy and fulfilled insofar as she is capable of fulfilment in such an environment. If she had been abandoned by her mother and other close relatives, this may have been the only option.

However, the fact is, and I so find, that the present living arrangements were not intended by Heather to be permanent and that Heather has a genuine wish to resume her role as a loving mother as soon as her health and the removal of existing financial constraints may cease. I find that the probability is that this will occur if and when appropriate purpose built housing and facilities can be made available in Huonville.

"The issue of emotional development comes into human development along the life span, which is a core unit of occupational therapy at the undergraduate level. The development of emotional and social development is also part of the training course in areas such as psychology, which is a first year undergraduate unit in occupational therapy. Occupational therapists look at the total person, they look at physical, psychological, emotional, social, factors that might affect a person's ability to perform life skill tasks and function as a member of society, so I do feel that looking at where a child is emotionally is part of the area of expertise of occupational therapists, looking at the big picture. In this case emotional development of children, I'm working with that in my current work, as well as my past experience working with severely disabled children who have actually been living in facilities for children with severe disability. That spans twenty one years of experience and I have, you know, a number of cases of children that I have actually tracked as children and adults where they have been living in an institution versus living in the home environment and I feel that there has been quite an emotional impact on that individual or those individuals because of the fact that they have been denied the basic opportunity to be part of a family unit. It's not possible to create a family environment in an institution even if it's a small group home situation. ... I think it makes a significant difference if a child is living at home versus living away from home. In many areas. And I think that one area that relates to just my post-graduation education is the area of learned helplessness or the 'locus of control'. In a home environment one has a certain role within a family and a certain impact on other family members and people understand that person. There's more chance that the needs of the individual can be met and that that person has the ability to develop a feeling of internal locus of control where they have some control over their life and their environment -- on the other hand, if you live in a situation where you are one of many people and all your needs cannot be met, which is the case in institutional living, no matter how dedicated the carers are, you have a situation where you have external locus of control where everything just happens around the schedule and what staff are on that day, et cetera, what food is cooked, where you are going, it's not coming from the individual. It's coming from the situation and what can work best within that. So, people with disability who cannot exercise internal locus of control lose the ability to have a real control over their lives and it can lead to what is called 'learned helplessness' -- where they simply give up. And that's the real danger of not living in an environment that can meet the needs of the individual. Learning that nothing is going to make a difference and then that particular person will not develop or reach their potential."

These are strong and compelling reasons for providing a home environment.

Mr Tree submitted that the defendant cannot and should not be held responsible to provide the capital cost of a home of the kind discussed in Mr Cooper's and Mr Singline's evidence and recommended by them. As a general proposition, the Australian and English authorities, of which regrettably there are comparatively few, tend to support this proposition. Some seem to suggest severely injured plaintiffs should not be awarded the full cost of a purpose built home but only the cost of such additions and alterations to an existing residence as may have been necessitated to accommodate or alleviate the injured party's disabilities. Cunningham v Harrison [1973] QB 942 at 952 - 953, Moriarty v McCarthy [1978] 2 All ER 213 and Dutcher v GIO of NSW, an unreported decision of the New South Wales Supreme Court delivered on 3 August 1988. Cannuli v Di Matteo NSW (CA) unreported 21 August 1979, is also referred to in some of the texts as supporting this proposition, but in reality it does nothing of the kind. As noted by Mahoney JA at page 9 of his judgment, the award of the trial judge of $75,000 for the purchase of a home for the plaintiff was conceded by the plaintiff on appeal to be incapable of support. Such a concession provides no precedent. At page 9 of his judgment Hutley JA said "Whether or not it is ever proper for an amount of this kind to be included in an award does not arise for consideration in this case". These were all cases involving severely physically disabled adult plaintiffs who were nonetheless in apparently full possession of their wits and their faculties of sight and speech. These cases, and others, are usefully collected and discussed in Luntz, Assessment of Damages for Personal Injury, 3rd edn, pars4.1.6 and 4.2.1 - 4.2.4. Obviously, the question of an allowance for the cost of providing a home for the plaintiff is bound up with the question of the cost which may be associated with caring for her in a family home accommodation rather than in a private or publicly funded institution.

It seems to me that the crucial issue is always the reasonableness or unreasonableness of the claim which has been made. This is a simple touchstone which has found favour in the High Court on more than one occasion (see Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 661 per Barwick CJ and Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563), but it seems to me that, in any event, a subtle and distinctly more liberal philosophy has found its way into the approach adopted in Australia since Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 and is now finding expression in such authorities as Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 and Kars v Kars [1996] HCA 37; (1996) 141 ALR 37.

In both Andrews v Grand & Toy Alberta Ltd (supra) and Thornton v Board of School Trustees of School District No 57 (Prince George) [1978] 2 SCR 267, the Supreme Court of Canada had occasion to consider the question whether or not the capital cost of providing a home with suitable facilities should be provided to a gravely injured plaintiff.

In Andrews, Dickson J, delivering the judgment of the Court, said at 242:

"The reasons for judgment of the Appellate Division embodied three observations which are worthy of brief comment. The first: 'It is the choice of the Respondent to live in a home of his own, and from the point of view of advancing a claim for damages, it is a most salutary choice, because it is vastly the most expensive.' I am not entirely certain as to what is meant by this observation. If the import is that the appellant claimed a home life for the sole purpose of inflating his damage claim, then I think the implication is both unfair and unsupported by evidence. There is no doubt upon the medical and other evidence that a home environment would be salutary to the health of the appellant and productive of good effects. It cannot be unreasonable for a person to want to live in a home of his own."

"The Court then expressed the view that the standard accepted by the trial judge was the equivalent of supplying a private hospital. The phrase 'private hospital' is both pejorative and misleading. It suggests an extravagant standard of care. The standard sought by the appellant is simply practical nursing in the home. The amount Andrews is seeking is, without question, very substantial, but essentially it means providing two orderlies and a housekeeper. The amount is large because the victim is young and because life is long. He has forty-five years ahead. That is a long time.

In reducing the monthly amount to $1,000, the Appellate Division purported to apply a 'final test' which was expressed in terms of the expenses that reasonably-minded people would incur, assuming sufficient means to bear such expense. It seems to me difficult to conceive of any reasonably-minded person of ample means who would not be ready to incur the expense of home care, rather than institutional care, for himself or for someone in the condition of Andrews for whom he was responsible. No other conclusion is open upon the evidence adduced in this case. If the test enunciated by the Appellate Division is simply a plea for moderation then, of course, no one would question it. If the test was intended to suggest that reasonably-minded people would refuse to bear the expense of home care, there is simply no evidence to support that conclusion."

In Thornton (supra) at 268, the headnote, which accurately summarises what was said in the judgment, reads (inter alia) as follows:

"The Court of Appeal erred in law in the approach it took toward the standard of care. According to the medical evidence, with home care, the injured person can be expected to live a normal, or almost normal, life span. With institutional care, it can be expected that he will not live a normal life span. Before denying a quadriplegic home care on the ground of 'unreasonable' cost something more is needed than the mere statement that the cost is unreasonable. There should be evidence which would lead any right-thinking person to say: 'That would be a squandering of money -- no person in his right mind would make any such expenditure.' Alternatively, there should be evidence that proper care can be provided in the appropriate environment at a firm figure, less than that sought to be recovered by the plaintiff."

I was referred by Mr Blow QC to Rosecrance v Rosecrance [1995] NTSC 136; (1995) 129 FLR 310, a judgment of Mildren J in the Supreme Court of the Northern Territory in which his Honour quoted with approval from George v Pinnock [1973] 1 WLR 118, a case in which the recoverability of the capital cost of housing was discussed by the Court of Appeal. The following passage occurred in the Court of Appeal's judgment:

"... the object of the calculation is to avoid leaving in the hands of the plaintiff's estate a capital asset not eroded by the passage of time; damages in such cases are notionally intended to be such as will exhaust the fund contemporaneously with the termination of the plaintiff's life expectancy".

At 332, Mildren J expressed his concurrence with these views in the following terms:

"I accept the defendant's argument that the plaintiff is not entitled to recover a capital investment which will still be in existence at the time of his death (or at some earlier time when the property is realised) but is to be compensated for the fact that his money will be tied-up in that investment until the capital sum is realised. I consider that the plaintiff is entitled to recover that sum which represents the cost of the money at a rate of 3 per cent per annum, using 3 per cent compound interest tables, plus an allowance for any additional costs which will reasonably be incurred in the future as a direct consequence of the purchase of a larger and more expensive home, such as additional electricity and cleaning costs on an ongoing basis."

With respect, I have difficulty in accepting this approach as that which is appropriate in cases such as the present. If facilities, equipment or structures are required for immediate use to ameliorate the plaintiff's condition, it must surely be unacceptable to deprive him or her of funds necessary to achieve that goal simply because such items may still have monetary value as an asset upon death. It may be quite fallacious to assume a substantial residual value for such a home at the time of death several decades hence.

Special features incorporated into the design may make the house hard to dispose of after many years' use. The potential market, even amongst other individuals with severe disability, may be limited, particularly if special equipment such as overhead tracks and hoists have deteriorated or become obsolete. As Mildren J pointed out, other features such as ramps and wide access entries may constitute liabilities and, in any event, an apparent capital gain may be offset by structural deterioration and increasing maintenance costs.

Considerations such as these have resulted in the court refusing to make an allowance in the defendant's favour for assumed capital gain in both Francom v Woods (unreported New South Wales Court of Appeal, 1 October 1980) and Marsland v Andjelic (1993) 31 NSWLR 162. In the latter case at 176, Kirby P and Meagher JA said:

"In deference to the submission for the respondent, it should be noted that although such alterations as are allowed for will improve the capital value of the property, no deduction ought to be made to account for this. A number of reasons support such a conclusion. First, such an increased capital value would only accrue upon the death of the appellant. Secondly, no doubt the alterations and adaptations will deteriorate over time and will require repair and maintenance at the expense of the appellant: cf Francom v Woods (Court of Appeal, 1 October 1980, unreported). In these circumstances we see no need in the facts for a deduction for the benefit of the capital value."

Additionally, it may be observed that if an injured party has a need, it must surely constitute an unacceptable fetter upon his or her right to use those damages as he or she considers fit by, in effect, withholding a large proportion of the claim and stipulating that a portion of the award assessed in relation to other aspects of loss, is to be used to satisfy that acknowledged need. A plaintiff's entitlement to use damages as he or she sees fit was unequivocally acknowledged in Van Gervan v Fenton (supra).

In the present case the evidence supports the view that existing homes, suitable for modification to accommodate the plaintiff's needs if living in a domestic environment, are few and far between, and the cost of alterations and additions necessary to cater for her inexpressibly grave disabilities will be high. It seems to me that a fairer and more appropriate method of approaching compensation is to allow the cost of a purpose designed new home and then to consider the likely expenditure which the plaintiff would have incurred, had she grown to be a normal adult earning an average income, in providing accommodation for herself and also, possibly, her family and then deducting that cost, discounted for present value from the sum allowed for lost earning capacity.

Into this rather imprecise equation must also be added the probability that she would have married or had a male partner who may well have contributed either the whole or a substantial part of these costs, notwithstanding that she was working and earning an income herself. There are, of course, other contingencies which may be taken into account, such as the possibility that through inheritance or the generosity of relatives or friends, she may never have had to find the cost of rent or mortgage payments on a house or unit. It seems to me that to adopt any other approach, and in particular, to adopt the approach which has found expression in some of the cases referred to above, may well have the effect of forcing a gravely injured person out of the security and comfort of a domestic environment into the unknown quality of institutional life.

I can accept neither the logic nor the justice in providing such a claimant only with the cost of modification of an existing dwelling. As I have already said, an appropriate dwelling may not exist, but a more fundamental objection is that the present plaintiff does not own a house and it cannot be assumed she will have free rein to modify a dwelling which she does not own. If such a plaintiff does not already own such a dwelling or have the wherewithal to purchase one, how can such a limited sum be utilised for the plaintiff's benefit?

It is also untenable, in my opinion, to suggest, as was suggested in Moriarty v McCarthy (supra), that the provision of a large award of damages, assessed by reference to other heads of loss and future expense, will be available to the plaintiff and that sum can therefore be utilised to purchase a home for the plaintiff. To do this is simply to defeat or nullify the purpose for which the damages have originally been assessed and awarded.

Megan is 7 years old. The average life expectancy for a 7 year old female is 74 years. If the money used to design and build the house which, as will be seen later, I have assessed at $450,000, were borrowed at six per cent per annum over such a life span, it would involve a gross pay out of approximately $519 each week. The appropriate seven per cent discount multiplier (Luntz, Table 2) is 766, ie, a total of $397,554. Discounting this further by twenty per cent for contingencies, the nett award would be $318,044. If the borrowing rate were assumed to be seven per cent per annum, the nett award would rise to $371,357.

In considering the reasonableness of this sum as representing the plaintiff's loss, it must not be forgotten that I am proposing to reduce the plaintiff's claim for lost earning capacity to reflect that cost which, in all probability, she would have incurred in providing accommodation for herself during her adult life. The nett result is, therefore, not greatly different from that which Mildren J's approach would have produced. If one thing is clear from the decided cases, many of which are usefully reviewed and analysed by Mildren J, it is that there are several different ways of approaching this problem. The method which may be appropriate for one case need not necessarily be appropriate for another. The actual outcomes which may be achieved by using the loss of income from capital, the actual cost of borrowing equivalent capital, or the assumed capital cost of building the house or making additions to an existing house, will not necessarily vary very much.

In my opinion, the approach which I have used is completely appropriate in the circumstances of the present case, particularly as I have not had the benefit of actuarial evidence on the issue and counsel for the defendant did not attempt any analysis of the alternatives available to persuade me that one course was preferable to another.

Mr Tree argued that it would be unreasonable to allow the cost of providing a house, rather than the more economical alternative of group housing or institutional care. When he put this proposition to Ms Sammons, she responded with her customary vigour as follows:

"While we can be very proud that we've moved from institutions to smaller group home situations, in essence, when we offer that to people, we're still not offering complete freedom of choice. We're offering what's economically viable for them and there is some concern about group homes. When you've got up to six people sharing accommodation and sharing services they are in fact at risk of becoming institutions where the individual needs of the people living there are still somewhat compromised because of the shifts of who is going to be there when and who needs to have this done when. So it still means that people's disabilities are significantly disadvantaged by living in larger group home situations."

She also pointed out that institutional and group home care is provided by governmental or other agencies with a limited budget and limited resources. The care provided is thus circumscribed by financial constraints and is sometimes far from that which is of an ideal standard. I agree with these views. Just compensation to Megan would be measured by an inappropriate yardstick if based upon levels of care provided to similar disabled, but non-compensable persons driven to seek assistance from publicly funded sources.

An interim arrangement proposed by Heather seems to be a practical and reasonable one to reintroduce Megan to the family environment. The home next door to that which she occupies in Acacia Street has become vacant and has been made available to her by the housing authorities. She said:

"It's in the process of being set up, we're going to utilise the house next door as extra floor area to provide space for a series of carers to provide care for Megan, also including overnights for the times when Megan does wake they will have their own bedroom, there will be a bedroom provided for them in the other house and obviously there'll be kitchen facilities. Megan will be with her family, the carer will come over and work with Megan -- my house is a very cosy house. If a little privacy is required, say, I have visitors I can say 'Well, kids' -- I can even say this to Lesley like I would say to children if I'm having an adult conversation 'Go play'. If they can't go outside they can go next door and the carer will be there with Megan but I will also be able to supervise Megan's care and notice those things that are happening with her, subtle things, if she's starting to get not well I know what action to take.

Megan will sleep in her own bedroom at home with her family. There will be occasions because of the size of my house -- there'll still be occasions Megan will actually have a bedroom set up next door where she can go as a form of respite but not miles away, she'll still be there so I'll still be able to keep in touch with what's happening with her.

There will be access ramps built at the back of my house and also the back of the second house for wheelchair access between the two and there will be access between the fence at the back. This is not an ideal situation, it's just I want Megan home and this can work briefly.

The simple size of the house, the lack of privacy, my bedroom's right next to Megan's and the bathroom which means I can't crawl out of bed -- I'm looking a wreck, I crawl out of bed and I go to have a shower there's a carer moving in that same space and also the sheer closeness in the house, it is very -- it's cosy, that's the only way you can describe it.

I think it's twelve squares but the way the living area is set up there's actually not -- you can't go round a corner to disappear out of sight even."

This is, as Heather says, not an ideal arrangement. The wide passages, hoists, heated floor, pool and other facilities which can be incorporated into a purpose built house will all be lacking. Nonetheless, it is a sound first step towards reintegration of Megan into her family and will, I think, go a long way to alleviating the stresses which previously existed.

Heather still wishes to return to paid employment but says "realistically it would probably take me a couple of years". I think this is a sensible assessment. Chronic depression does not disappear overnight and readjustment to family living with Megan will take some time, both in the temporary accommodation next door, and later in the purpose designed home.

After due consideration, I have concluded that Megan's future needs in this respect should be met by providing her with the wherewithal to acquire a specially designed and constructed home.

Another of the objections raised to this approach by the defence was that the defendant should not have to provide a residence to accommodate, not only Megan herself, but also her mother and sister Lesley. Obviously as time goes by and Megan passes through adolescence into adulthood, the time may come when, for any number of reasons, she may wish to live on her own with her carer. Equally obviously, it is likely that when Lesley grows up she will move away and marry or set up her own household elsewhere. If these events actually occur, the home may be left with one or two vacant bedrooms. This, of course, is not a unique experience. The same situation arises in respect of most family homes and when it does the vacated rooms are often put to good use as hobby centres, games rooms or studios. If, as I propose, the presumed cost of acquiring an average family home over Megan's presumed working life should be taken into account and set off against the capital cost needed to acquire a specially designed home, I can see no good reason for paring the cost of one or two bedrooms from that cost as not being the responsibility of the defendant.

There are three further considerations which lead to a similar conclusion. One of the reasons for concluding that a home environment is desirable for Megan, is to enable her to live in the companionship of her mother and her sister. The beneficial effects of family support in aiding the comfort and well-being of an injured plaintiff were recognised as long ago as 1961 in Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523. It would therefore be inappropriate to reduce the sum reasonably expended in building a family home by requiring the plaintiff to meet the cost of accommodating her family out of her own pocket. Secondly, whilst the cost of providing extra bedrooms is not significant in the overall cost structure of a house, to omit standard features of an Australian residence such as three or four bedrooms, may have a significant effect upon the value of the house, if resold. Thirdly, a self-contained house of this kind will eliminate the need for Megan to incur the cost of outside respite care and reduce the cost of such care to some extent. This is a significant consideration.

I have already dealt with the suggestion that the plaintiff should not be provided with the means to acquire a valuable capital asset of this kind because, upon her death, her next-of-kin would receive an undeserved inheritance and I have rejected that proposition. But it must be borne in mind, I think, that although it may be anticipated that the plaintiff will spend her entire life in the home built from the proceeds of the action, circumstances may come to pass which would require the sale of the premises and the purchase of new accommodation. Of necessity, the home will have a number of features which will distinguish it from the average family home and it would not be sensible to reduce its appeal to a potential buyer by further reducing its utilitarian qualities.

Ms Suzanne Hodgson, who has specialist experience and qualifications in the area of community reintegration for people following brain injury and who was responsible for the foundation of the well-known "Headway" organisation, gave evidence as to the development of group homes as an alternative means of care for brain damaged people, including those who are also severely physically disabled. This evidence was interesting and valuable but in view of my determination that Megan should be cared for in purpose-built family accommodation, I see no need to review it in detail, except to mention the following passage of evidence which tends to reinforce the views of previous witnesses who described some of the problems which can arise from seriously brain damaged people being thrown together in a shared environment:

"Q You were talking, speaking before about challenging behaviour in people with acquired brain injuries. On a day to day basis how do these challenging behaviours tend to manifest themselves? A Well in a group home situation, because people with acquired brain injury often act inappropriately, are often disinhibited in their behaviour, may become quite aggressive and are often self-centred and have memory problems. So, when you have got that combination together it means that there is often quite a volatile situation within a house unless you get the mix right. Somebody watching television when somebody else comes in -- they may wheel themselves or walk across and switch the television over, and that becomes dynamite, so -- very small things in yours and my life become major obstacles. I guess one other ongoing problem is that people with brain injury often act inappropriately, their social skills are damaged and they become disinhibited so when you were talking about relationships before -- this can often pose problems in a group situation because people will come out and say and do the things that you and I may or may not only think ... Q So, if you were confronted with a problem within the dynamics, the personal dynamics of a group home, short of moving one of the incompatible parties to another location, how else can that problem be dealt with? A It usually involves a psychologist who attempts to put some behaviour modification program in which may or may not work. It may mean additional staffing, or looking at other activities that the person can be involved in. To de-fuse the situation."

The cost of Providing a Purpose Designed Residence

Mr John Cooper, an architect from Victoria with experience in designing units and houses providing access and appropriate facilities for disabled and elderly persons, was engaged to prepare a report and to draw concept plans for a residence suitable for Megan's needs. Some of the ideas incorporated in this exercise came from Heather. The philosophies which guided Mr Cooper in the project were described by him in the following passages taken from his evidence:

"Q Now in paragraph 2.2 of the report you've said 'The proposed house needs to meet Megan's current and future needs and should be designed with some flexibility in mind. This could be achieved by zoning the functions' et cetera. What did you have in mind as the purpose of zoning functions? A It was my understanding that Megan's high dependence area needed probably to be isolated a little bit from the rest of the family residence, partly to avoid some distraction for Megan while she's undergoing therapy and also so that it was a self contained area and she could mix in the other area of the house in what could be regarded as a normal way with the family but the separate zone needed to be there for both her therapy needs and also perhaps for the needs of someone who would be an attendant carer at that end as well. Q Now, the plans show four bedrooms, can you explain what your purpose was or what the idea is of having four bedrooms? A My understanding was that while the house is for Megan to accommodate Megan and her family, therefore the family end of the house has a bedroom for Megan's mother and sister, Megan's end of the house has her own bedroom with an adjacent bedroom which could be used by either of the family members if they were sleeping in close proximity to her or in the future for a full time attendant carer or for a friend or peer who may be sleeping over to allow that flexibility. Q Now, the plan shows ceiling tracking, can you explain what provision you made for ceiling tracking in the residence? A The provision that's been made for the ceiling tracking is it's to accommodate a hoist which is that recommended by the occupational therapist and I was advised that it needs to serve both Megan's therapy area, her bathroom area, her sleeping area and provide two other things, one, a storage area for the hoist for its recharging, which is why it extends into the adjacent store, and secondly runs from the bathroom area out into the pool area to allow her to be transferred into the hydrotherapy pool. Q Now you show a storeroom on that plan, can you explain why that's there and why it's the size it is? A The storeroom is the size it is which is I think approximately twelve square metres from memory but I may be wrong, it's to accommodate some of the therapy equipment that Megan needs as well as storage of the hoists that I've just mentioned, storage of a mobile hoist which will be necessary to serve those areas of the house not accessed by the overhead hoist. Some of the therapy equipment are large, peanut shaped objects which are fairly bulky items which it was deemed better to be storing out of sight rather than cluttering up the therapy room with them. It would also store, as I understand it, it would have shelving in it to store other sundry items to suit both Megan's therapy and hygiene needs. I'm sorry, I haven't mentioned, sorry, there's certainly a spare wheelchair in there as well which is why it's also shown with a door from both sides in that there may be a need to access it from the entry side as well as the therapy side."

A cost estimate of the proposed dwelling was prepared by a quantity surveyor at Mr Cooper's request and an estimate of the 1995 cost at between $387,200 and $484,560 was the result. Mr Cooper said that about six per cent should be added to this to accommodate cost which had increased since that time. This estimate included the provision of a spa bath. To include a hydrotherapy pool and equipment would increase the cost by about $120,000 to $130,000.

Mr Cooper was asked to make the assumption that the house would be built on a block of land purchased for that purpose in or near Huonville. He thought that a 1,500 square metre block would be necessary. His design takes account of the many special requirements that must exist to cater for Megan's disabilities, including increased door width and height and strengthened ceiling supports to take account of the stresses engendered by wheelchair movements and hoist use, wider than usual car parking adjacent to external doors to allow manoeuvrability of vehicles and wheelchair by hoist and ramp, internal protection of walls against wheelchair damage, and so on.

Mr Cooper regarded it as important that the heating consist primarily of heating from the floor by means of a concrete slab with integral electric elements. This recommendation stems from Ms Sammons' concern that Megan spends a lot of time on the floor and it is desirable that her environment be kept at an equable warmth, year round. As she said, when Megan is cold she cannot just go to her room and get a jumper or even ask her carer to do so.

Mr Cooper also inspected several homes in the Huon area to consider their feasibility for modification. The only one with the potential for effective alteration was at Mountain River. Details of estimated cost were calculated but, when put alongside the original capital cost of the house, it is quite clear that it would be a marginal exercise to purchase and modify the home rather than building a new residence in accordance with Mr Cooper's concept plan.

Mr Tree was critical of Mr Cooper's suggestions that there should be provision for landscaping the garden of the proposed home to provide (inter alia) an attractant for bird life. "Why should the defendant pay for such things?" said Mr Tree. However, I do not consider this to be a reasonable criticism. Gardens are a standard feature in most Australian homes. Megan, herself, has no gardening or horticultural ability. She will always need to engage a gardener to perform such functions and, it should be noted, she has made no claim for such additional cost. Had she done so, it may well have been allowed. In these circumstances I think it entirely reasonable that the initial establishment cost of the garden should be allowed within the estimated price of the residence.

When it is considered that the all up cost of securing a vacant block and building a home of the kind contemplated by Mr Cooper will be in the vicinity of $500,000, one is entitled to scrutinise the project with some care. By Tasmanian standards, a $500,000 home is well and truly in the upper luxury class. However, having given the matter careful thought, I am satisfied that it would be wrong to compare the special design advanced in this case with an average family home. In the first place, the proposed residence is considerably bigger because wider access is needed. So too, are special purpose rooms and storage facilities. There is an enclosed pool as well, which is a rare item in this State. As Mr Blow QC also points out, it is something which will probably have to accommodate Megan for the rest of her life because alternatives either do not exist or are very, very rare.

On the other hand, the projected costs are estimates only. Reasonable economies may well be found when the house proceeds to final design stage. For these reasons I am disinclined to allow the amount claimed in full. I will return to this matter when I deal with Item 4 of the particulars of claim.

An issue of considerable importance to the outcome of these proceedings involves a consideration of the Common Law (Miscellaneous Actions) Act 1986 ("the Act"), s5.

"5 -- An award of damages that relates to personal injury of a person shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance -- (a) which have been or are to be provided by another person to the person in whose favour the award is made; and (b) for which the person in whose favour the award is made has not paid or is not liable to pay."

It was common ground that this provision came into being as the result of Parliament attempting to abrogate what has become known as the rule in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 but the extent to which this attempt had been successful was in dispute. One effect of the Griffiths v Kerkemeyer rule was to permit the recovery of damages in actions for personal injury which included a sum assessed at commercial rates in respect of domestic assistance and nursing attendances provided gratuitously to the injured party by a friend or relative. Appropriately discounted sums were also allowed in some cases for the future provision of such services. In Cook v Schuettzpeltz and Rolf 25/1987, I made the following observations (at 20):

"It has also been submitted that the plaintiff is entitled to damages on the basis of what is commonly called a Griffiths v Kerkemeyer claim, based upon the contention that she requires assistance in the carrying out of household duties and that the value of these services, though provided by her husband, and not paid for by the plaintiff, should nonetheless be the subject of reasonable compensation. It is notorious I think, that some claims of this kind have developed to unrealistic levels in the past 10 years or so and that the value or services claimed in respect of work done by unpaid friends, relatives or spouses have escalated to a fanciful level. It is perhaps not surprising that legislation was passed some months ago curtailing the scope of such claims for the future."

Mr Tree sought to refer me to the second reading speech in the House of Assembly when the Minister introduced the Bill for the Act to Parliament, pursuant to the enabling provisions contained in the Acts Interpretation Act 1931, s8B(1) and (2). That section is in the following terms:

"8B -- (1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation -- (a) if the provision is ambiguous or obscure, to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result; or (c) in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision. (2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be given to -- (a) the desirability of a provision being interpreted as having its ordinary meaning; and (b) the undesirability of prolonging legal or other proceedings without compensating advantage; and (c) other relevant matters."

Mr Tree referred me, not only to the Minister's second reading speech, but also the debate which then ensued. Mr Blow QC submitted that I should not refer to this material because there was nothing ambiguous or obscure about the statutory provision in question and there was no manifest absurdity in the interpretation for which he was contending. There is no doubt that pars(a), (b) and (c) of subs(1), constitute preconditions to the use of extrinsic material of the kind permitted by the Acts Interpretation Act, but I have no need to rule upon the correctness of Mr Blow QC's submission as it applies to the present case, because I am quite unable to see that anything said during the Parliamentary proceedings is capable of assisting me to interpret the relevant section of the 1986 Act.

Mr Blow QC also submitted that s5 was limited in its scope to "services" of the kinds specified in that section and thus did not apply to the provision of facilities or goods, either in the past or future. Mr Tree did not attempt to argue to the contrary and, as to this, Mr Blow QC is plainly correct.

Nonetheless, there are some difficulties which are immediately apparent from the content of s5. "Services of a domestic nature" are not defined in the Act but, on the basis of the type of claim commonly made under the Griffiths v Kerkemeyer rule, it is fairly obvious that this phrase relates to, and is intended to apply in respect of household chores such as washing, ironing, vacuum cleaning, cooking, bed making and minor maintenance jobs, such as uncomplicated electrical or mechanical repairs to appliances, washing motor cars, gardening and the like. Greater difficulty arises in respect of the phrase "services relating to nursing and attendance". One is tempted to surmise that the "and" crept into this phrase by error and that the true intent of the legislature was to refer to "services relating to nursing attendance" -- a view which is strengthened by the fact that the word "attendance" (singular) has been used rather than "attendances" (plural) but since the High Court's rebuff to this type of judicial legislation by inferior courts (see Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633), it would be untenable for me to adopt such a construction particularly as the New South Wales Parliament adopted a similar phrase to that contained in the Tasmanian section in the Motor Accidents Act 1988, s72(1). Accordingly, it is necessary to consider what an "attendance" is within the meaning of this provision and what a service "relating" to "attendance" embraces. It is necessary to do this because the plaintiff's claim includes claims for the value of her mother's attendance as a carer between the date of her birth until she, the plaintiff, became a resident at Quindalup in June 1996. This claim has been quantified at $549,402.88 (Item 26.1). There is also a similar claim for the value of future care from the date of trial until the end of 2008 when the plaintiff will be nearly 19 years of age, quantified at $1,219,049.46 and a further claim for the estimated cost of attendant care from 1 January 2009, for the balance of the plaintiff's life, amounting to $1,170,206.30. In addition, there is a claim made in respect of the provision of attendant care by Mrs Gatenby whilst the plaintiff has been attending school at Huonville since 1995. To date, that care has been provided free of charge to the plaintiff by the Department of Education, Community and Cultural Development. There is no suggestion that a claim for the cost of providing this service will be made upon the plaintiff by the Department following the resolution of these proceedings. There is also no evidence which suggests that a claim will be made by the Department in respect of the provision of future services of a similar kind, even if the plaintiff's claim in respect of the value of future services is allowed in full at the sum claimed viz, $142,205.84. It is claimed that the plaintiff will require a school attendant or aide until she leaves school in December 2008.

There are other items of claim which are of a similar kind, but those which I have just mentioned will suffice to show why it is necessary to consider the terminology employed in s5 in the present case. The only cases referred to by counsel were two earlier decisions of my own, Burbury v Sievers 83/1994 and Wright v Edgell Birdseye B65/1995, but these do not assist upon the point being presently discussed. "Relating to" is a phrase with a wide denotation and has been construed in the past as including anything which can be regarded as having a material connection, correspondence or relationship to the thing in question. It is therefore wide enough to cover any kind of "attendance" upon an injured individual which arises from the injury sustained. I am therefore of opinion that, whether or not Heather Grimsey's attendances on her disabled daughter may properly be regarded as "services of a domestic nature" or as "services relating to attendance", clumsy though that phrase may be, they are caught within the prohibition of s5 insofar as they "have been" provided in the past and have not been paid for and are not the subject of an existing liability to pay. The same view must apply in respect of the school attendances by Mrs Gatenby who has been assisting Megan at the Huonville Primary School since 1995.

However, as different considerations apply, I have not reached the same conclusion in respect of the value of future services of a domestic, nursing or other nature.

In Wright v Edgell Birdseye (supra) at 10 I said:

"There has been no claim for so called Griffiths v Kerkemeyer damages in respect of the period from the accident to the date of trial in the present action, as the plaintiff's injury occurred after the commencement of the Common Law (Miscellaneous Actions) Act 1986, s5; however, although this prevents an injured plaintiff claiming compensation in respect of services voluntarily provided in the past, it does not bar a claim in respect of future services, provided that an inference can reasonably be drawn that the plaintiff will incur expense in providing for any necessary domestic assistance in the future. It seems to me to be a reasonable inference which may be drawn in many cases that a plaintiff, particularly one who has been in straitened financial circumstances, who receives an award of damages may use part of those funds to provide necessary services which, in the past, were provided out of friendship or a sense of duty by friends or relatives. I have drawn such an inference on previous occasions and I consider it reasonable to do so now. It is one thing to say that an injured plaintiff should not receive damages for the provision of past services calculated on the basis of a cost which has never been incurred; it is quite another to say that because a plaintiff has been provided with gratuitous assistance in the past this fact will provide a basis for presuming that her future needs will be met in the same way.

It seems to me probable that the provisions of s5 can only be legitimately called in aid to reduce an otherwise reasonable claim if there is at the date of trial some pre-existing agreement between the plaintiff and another person or persons that domestic or other relevant services will be provided at no cost. Section 5(b), perhaps significantly, does not advert to services for which the person in whose favour the award is made 'will not be liable' to pay. It speaks rather in terms of past and present agreements as to liability but does not specifically mention the future."

It was submitted by Mr Tree that the phrase "has not paid or is not liable to pay" in s5(b) has the effect of prohibiting payment in respect of future services of the relevant kind unless, at the time of trial, payment has been made in advance for these services, or at that time there is a clear liability, ie, a legal obligation, to pay for such services as and when delivered. In my opinion, one can only speak of services which "are to be" provided to a person, if it can be said with reasonable certainty that there is some firm arrangement to provide specific services at some identified or identifiable time in the future. In such a case it is understandable that Parliament should seek to limit the recovery of damages for such services if those services are to be provided free of charge. In such circumstances, there is room for the argument that funds should not be paid to the injured plaintiff because they would constitute a windfall gain, rather than a provision to satisfy the need to obtain such services. That argument is, of course, contrary to the philosophy and approach which underpins Griffiths v Kerkemeyer, but its legitimacy is difficult to deny.

It is, however, a quantum leap to say that an injured party, particularly an infant plaintiff, should be deprived of the funds to pay for essential care which is likely to be required in the future from many different people over the balance of the plaintiff's life because some person or organisation has not been signed up to do this by the time the case reaches court. Such a proposition is plainly unjust and insupportable. Is this what the Tasmanian Parliament set out to do in 1986? I think not. In my opinion, s5, shorn of its clumsiness, is saying:

"Damages awards shall not include a sum of money which is equivalent to the commercial cost of domestic nursing or other services which have been or will be provided free of charge to the plaintiff."

I do not accept Mr Tree's submission, and I would be appalled to think that our legislature intended that people like Megan, who have been massively injured by a clearly negligent act, must be forced into charitable or publicly funded institutions unless they have an enforceable contract with a particular person to provide care for the balance of the injured plaintiff's life. "Person" in this context clearly includes a body corporate or an unincorporated organisation (see Acts Interpretation Act 1931, s41).

There is, in existence, an agreement dated 4 November 1992 between the plaintiff's next friend and grandfather Henry Charles Grimsey and her mother Heather Grimsey. This was tendered in evidence (Exhibit D1) and was the subject of some contention. The agreement purports to bind the next friend to pay Heather for such nursing and supportive care as Megan may reasonably require, out of the damages resulting from these proceedings. Mr Tree submitted that insofar as the assessment of damages may include monies for Megan's future care, this document effectively limited the amount recoverable to a much smaller amount than that claimed in the particulars. Mr Blow QC submitted that the agreement was of no effect as the next friend was without authority to bind the infant plaintiff or those administering her funds to make any of the payments provided for.

It is clear that the agreement constitutes an attempt to outflank the provisions of the Act, s5, and, in the case of contracting parties both of whom are sui juris, such an agreement may well have that effect, but I think Mr Blow QC's submission is correct and, in the present case, the document can have no bearing upon the assessment. The point made by Mr Blow QC serves to remind one that the present claim is Megan's alone. The interests of her mother or grandfather can have no bearing upon it.

It seems to me that the effect of s5 is only to preclude any claim for services which Megan may require in the future if it may reasonably be inferred that such services will be provided free of charge. Mr Tree submitted that the onus of proving her loss lies upon the plaintiff and this is indisputably correct (see Purkess v Crittenden (supra)). However, it is plain beyond question that Megan is going to require ongoing care in the future of a more or less continuous nature, except when she is in bed asleep, and even then she will require a degree of passive monitoring. The only real question relevant to the present inquiry is whether or not some part of that care will be provided by Heather without cost to the plaintiff, by some Government or other public agency, either with or without cost or at a reduced amount, or by some commercial agency at appropriate commercial rates. The gratuitous provision of such services in the past is not a reliable yardstick as to the future. In Burbury v Sievers (supra), I said at 30:

"What I have said as to Mr Burbury's assistance to his wife disposes of her claim to the present time but the question must be asked. 'What of the future?' Can it reasonably be inferred that Mr Burbury will continue to provide for his wife's needs in the years to come? On the basis of his age and their respective life expectancies is she likely to outlive him and thus need household assistance after his death? Some evidence was given which tended to show that their marriage was in trouble and, indeed, that she had contemplated suicide but in my opinion although their relationship has changed for the worse since the accident, there is no real basis for concluding that separation or divorce is likely and, as for suicide, as Mrs Burbury herself acknowledged, her obligations to Sherrie would rule that out. On the other hand why should I assume that Barry will continue to provide services in the future. Both plaintiffs are now aware that in my opinion so long as Barry provides the services Mrs Burbury's claim will be commensurately diminished. Regardless of whether I award Mrs Burbury a sum to compensate her for the future cost of domestic services or not she may well decide to hire regular household help two or three mornings per week now that she has had her damages assessed and knows that she will have a substantial amount of money at her disposal, indeed I think it highly likely that she will do so."

This commends itself to me as an appropriate line of reasoning in the present case, but here the argument in favour of assessing damages on the basis of appropriate commercial rates is considerably stronger.

Neither Heather nor Mr Grimsey will have direct control over the expenditure of Megan's damages. That responsibility will be in the hands of the Public Trustee. No doubt he will consult with Heather on various matters, but he is not bound to conform to her wishes.

There was a considerable body of evidence given at the trial which confirms that Heather is suffering chronic depression and other psychiatric disabilities and also a chronic back ailment which may be due to physical or psychosomatic causes. I accept these claims as genuine. They are such that they have effectively caused Heather to opt out of caring for Megan since June 1996. There is no reason to think that Heather's condition will improve significantly in the foreseeable future. She certainly wishes to provide motherly care for Megan in the future and I think that it is likely that she will do so but she also has a life of her own to live and there is no reason that I can see for me to conclude that she will continue with the soul destroying responsibilities which she attempted to discharge up until Megan was placed at Quindalup.

There is a world of difference between the mothering responsibilities which would be expected of a female parent to her young, physically and mentally competent offspring and the sort of responsibilities which Heather attempted to undertake during Megan's early life. The constant watchfulness, the grindingly repetitive tasks to clean and feed Megan and the physically demanding need to move her from place to place, whilst all the time overborne by a nagging guilt for her child's dreadful incapacity, are difficult to imagine. I can only say I am surprised that she endured as long as she did. Many single mothers may well have abandoned their grossly disabled child to institutional care and faded rapidly from the picture.

In my opinion, there is no sound basis for concluding that Heather will provide significant care in respect of Megan's disabilities in the future, nor can I conclude that she should, in effect, be obliged to do so by the provision of an inadequate award of damages.

Similarly, I see no sound reason for concluding that those services presently provided by Government or other public agencies at no direct cost to Heather Grimsey or the plaintiff, will continue to be so provided in future. There was no evidence of any relevant Government or administrative policy on these matters. In recent years there has been a discernible shift in the policy of all Australian Governments of whatever political party to require that the user pays for services provided. It would be surprising to me if those services currently being provided to Megan free of cost were to continue on the same basis after the conclusion of these proceedings. In my opinion, the only proper way to approach the assessment of the plaintiff's future needs is on the basis that such services as she will require be provided for on the basis of their being made available at a commercial cost. This means, of course, that I am of the opinion that the Act, s5, does not operate so as to limit or preclude the plaintiff's claims in respect of such services, whether they be regarded as domestic, nursing attendances or attendances of any other character.

I find, on the balance of probabilities, that from now on Megan's negligently caused needs for such services will be provided at commercial cost by organisations and persons other than relatives or friends.

This is the single largest item claimed, but once the principle has been accepted that Megan is entitled to be provided with a purpose designed dwelling, the area of dispute as to the quantum of the claim falls within a narrow compass.

Rosemary Vickers is the executive director of Independent Health Care Service Pty Ltd, a company which is involved in the supply of registered nurses, personal carers, home help and handymen to individuals in the community. Her estimates of costs based upon the degree of care described by Ms Sammons and Ms Xenitelis formed the basis of the plaintiff's claim in respect of relevant items in the particulars of claim. Although her figures and calculations were probed in cross-examination, I find them to be non-controversial and completely acceptable.

Loss of Earning Capacity and Loss of Superannuation Benefits

It has been conceded by the defence that Megan will be unable to work in gainful employment. The plaintiff's claim for lost earning capacity has been formulated as follows:

"23.1 As a result of the Defendant's negligence the Plaintiff has been wholly deprived of any earning capacity.

23.2 Although the Plaintiff was deprived of the opportunity to display her full intellectual or physical capabilities it is apparent from the Plaintiff's parental family history that, had it not been for the Defendant's negligence, she would have at least had the capacity to earn in adulthood one and a half times the average weekly wage for Tasmanian full-time female employees as calculated from time to time by the Commonwealth Statistician, and more likely than not have attained tertiary qualifications.

23.3 The Australian average weekly wage for Tasmanian full-time adult employees as at February, 1997, as determined by the Commonwealth Statistician was $686.30. The PAYE tax payable on that weekly income is currently $171.50 accordingly a worker in receipt of the said average weekly income would have an after-tax weekly income of

23.4 The Plaintiff might have obtained tertiary qualifications and earned $700.00 per week after tax, or more

23.5 Assuming the Plaintiff commenced work at 17 years and worked until age 65 years earning $514.80 per week after tax, the amount required to compensate her for her loss of earnings would be $514.80 x 741.2 x .508

23.6 Assuming the Plaintiff would have commenced work at the conclusion of tertiary studies at age 22 years and earned an income of $700.00 per week after tax, the amount required to compensate her for her loss of earnings would be $700.00 x 729.2 x .362

23.7 Had the Plaintiff undertaken tertiary studies, she would almost certainly have undertaken part-time work and full-time vacation work before completing them. The Plaintiff claims for the loss of her earning capacity

As mentioned when dealing with the plaintiff's expectation of life, there is an enhanced risk resulting from her condition that she may not live to be 81 years. If her premature death were to occur after the age of 65 years, the amount recoverable in respect of lost earning capacity should not be affected.

If, however, her working life were to be cut from 48 years (age 17 - 65) to (say) 24 years, ie, assuming death at age 41, the sum of $193,837.44, calculated in the above claim would be reduced to $161,932.19 ($514.80 x 619.2 x .508 -- source CCH 1994 Tables, Exhibit P41) -- a reduction of approximately 16.5 per cent. This illustration identifies the enhanced diminishing effect upon future payments as the assumed payment date becomes later and later in the relevant lifetime.

Other matters which must be considered arise from the usual adverse contingencies such as the possibility of unemployment, non-compensable injury or death from other causes, unpaid time taken out of career for having children and raising a family. The evidence of Mr Fallon from the Department of Employment, Education, Training and Youth Affairs, indicated that the Huon Valley area has high levels of unemployment. On the other hand, there are the positive contingencies such as the prospect of promotions to higher real salary levels and the like. In the case of a 7 year old child who was developing normally before a totally disabling injury, these factors would be difficult enough to assess, but in the case of a child such as Megan who has never had a period of normal development, they are almost impossible to calculate and when coupled to the possibility of early death, the task becomes even more speculative (cf Martin v Howard [1983] Tas R 188).

In his final address, Mr Blow QC presented me with some useful calculations in respect of the likely cost to Megan if, during her adult working life, she had been obliged to pay for housing, home insurance, council rates and the running costs of a motor vehicle out of her earnings. These calculations were in the following terms:

"COST OF HOUSING IF NOT DISABLED If the plaintiff would otherwise have: (a) left home at 20; (b) paid $120 per week for rent or by way of mortgage interest until paying off a mortgage; (c) paid her final mortgage payment at age 55, the appropriate discount is calculated as follows: Multiplier for 35 years (age 20 to age 55): 699.0 35 years @ $120 pw: $120 x 699.0 = $83,880 Discount for payment in 13 years' time (age 20): $83,880 x 0.415 = $34,810

HOUSE INSURANCE AND RATES IF NOT DISABLED Assume paid from age 25 to age 80: Insurance $388 pa (Jacques - Exh P22, 2) Rates AAV = 4% of $120,000 = $4,800 Rate = 14.71465 cents in $1 (Exh P28, 2) $4,800 x 14.71465% = $706.30 pa Insurance $388.00 Rates $706.30 $1,094.30 pa This equals $21.04 pw Multiplier for 55 years (ages 25 - 80) is 752.6 Multiplier for payment 18 years early (ages 7 - 25) is 0.296 $21.04 x 752.6 x 0.296 = $4,687"

The assumed value of the house for the purpose of this exercise was $120,000.

"VEHICLE EXPENDITURE IF NOT DISABLED Assumptions: (a) At age 19, Megan would have bought a car for $5,000; (b) Every 5 years thereafter, she would have traded in her old car, and spent an extra $5,000 trading up. Average cost $1,000 pa from age 19 to age 75 Say $20 pw for 56 years $20 x 753.80 = $15,076 Discount for delay age 7 to age 19 (12 years) $15,076 x 0.444 = $6,693"

On the basis of these calculations, it was submitted that a total of about $46,190 should be deducted from such amount as I may otherwise be disposed to allow for lost earning capacity. Interesting though the figures are, I think that the prognosticated housing and motor vehicle running costs are somewhat undervalued and the cost of heating a standard home or unit has not been taken into account at all. On the other hand, of course, account must also be taken of those matters which I have already mentioned, viz, that the plaintiff may have lived rent or mortgage free, either with her mother or a husband, that she may have received an inheritance which would have obviated or diminished such cost, that she may never have used a car for a variety of reasons, or one may have been provided without cost by her husband, and so on. On the basis of all these considerations, I have concluded that it would be appropriate to allow the sum of $90,000 nett in respect of lost earning capacity.

Mr Brian Bendzulla, a professional actuary with substantial academic qualifications and considerable experience, calculated the present value of potential superannuation entitlements which Megan may have acquired if she had the future capacity to earn an income. He stated his brief in the following terms:

"I was asked to project the likely superannuation entitlement at age 65 on a given salary figure, taking into account the current legislation, the mandated superannuation guarantee level contributions, and the various administration, taxation and other model parameters that apply, and to calculate the present value of it for a girl born on the 27th of February, 1990."

Two alternative scenarios were provided in respect of the assumptions to be made as to the income likely to be earned. These alternatives were in all material respects the same as those which underpinned the plaintiff's claim in respect of loss of future earning capacity. Counsel contended that, oddly enough, a young woman who planned to postpone her future entry into the work force by engaging in a quest for tertiary qualifications may find the present value of her earning capacity, if valued for the purpose of paying an immediate lump sum, to be somewhat less than the value which that lost capacity would have had if based upon the achievable earnings to be expected by someone entering the work force immediately upon leaving school. There is, undoubtedly, some substance to this contention, but the comparison upon which it is based becomes somewhat less remarkable when account is taken of the fact that the worker who was taken to be without qualifications for the purpose of Mr Blow QC's exercise, was the "average full time adult employee", taken from Commonwealth statistics which, one may infer, includes university educated employees, as well as those without tertiary qualifications. The differences in the calculations are, however, not of great magnitude compared with the parameters existing in this case. It is difficult to make a reasoned choice between the two possible approaches, but I think that the "average" full time adult earning figure, provides a more appropriate guide, having regard to the complete absence of material, except Heather's undoubted intelligence, for making the prognosis that Megan would have gone on to attain tertiary qualifications. Mrs Fay Grimsey gave details of the scholastic achievements of Heather and other members of her family.

Mr Tree was almost trenchant in his criticisms of Mr Bendzulla's calculations, suggesting that he was wrong to employ figures which were an amalgam of the average earnings of Tasmanian males and females and in applying an allowance for inflation in his calculations which, he submitted, was contrary to the approach sanctioned by the High Court in Todorovic v Waller (supra).

As to the first of these criticisms, it may be observed that although a comparison between male and female earnings at the present time reveals that there is a disparity between the two, it cannot be assumed that this disparity will exist in the future when Megan would be old enough to enter the work force. Considerable strides have already been made in eliminating what most people see as an unfair and unjustifiable discrimination between the value of a man's work and that of a woman. Furthermore, as society develops, one sees a considerable blurring of the boundaries which previously distinguished male and female workers. These days men become cake decorators, and women become underground miners. The world is changing and, in this respect at least, obviously for the better. I am of opinion that Mr Bendzulla's methodology was entirely appropriate.

As to Mr Tree's second point, his submission is in conflict with the views expressed by Zeeman J in Heather v Vita Pacific Ltd (1996) 6 Tas R 52 at 66. A loss of superannuation contributions is not a situation in which one has to arrive at today's value of a series of payments notionally received over a period of time in the future which will take account of such things as income earned upon the sum awarded, income tax payable thereon, and erosion by inflation, to place a realistic figure upon that value. It is rather an attempt to value periodic payments to a fund which will grow to the end point of the claimant's retirement from the work force at which time the relevant sum will be payable. In such circumstances I agree that the Todorovic v Waller approach is not applicable. I am of opinion that Mr Bendzulla's approach is unimpeachable and I propose to accept and apply his calculations and opinions in assessing the allowance which I make in respect of lost superannuation contributions.

However, as with loss of earning capcity, a similar discounting process for contingencies must be considered. Unemployment, early death before age of retirement, permanent or temporary absence from the work force due to family priorities, are all legitimate matters to take into account, but the income reducing items, such as housing, insurance and car expenses, appear to be irrelevant. The plaintiff has claimed $67,071 which is based upon the highest of Mr Bendzulla's several calculations. There are many imponderables with an item of this kind, changing government policy being not the least of them. I propose to allow $40,000.

Before Megan's birth, Heather did not own a motor vehicle, but since June 1991, one has been made available to her from Government sources. I infer that this was provided to ease the burden of commuting from Huonville to treatment centres in Hobart and to provide transport for Megan from home to school. No doubt it will be returned soon after the termination of these proceedings because it is quite plain that funds ought to be provided within the damages award to allow for the purchase of a specially modified and equipped vehicle to convey Megan from place to place. As with housing, I consider it inappropriate to allow only the cost of modifying an existing vehicle. In the first place, there is no suitable vehicle presently owned by, or available to, the plaintiff and to use funds earmarked for other purposes to purchase such a vehicle is inconsistent with the allowance of those items to meet other specific needs.

The appropriate way to strike a fair balance is to make a deduction from the sum assessed for lost earning capacity on the basis that some part of those notional earnings may have been utilised to purchase a motor vehicle. There are, of course, other factors which enter into the question. Megan may never have purchased or driven a motor vehicle. She may have utilised public transport or, if living in a small community, she may have simply walked from place to place. Had she married, her husband may have provided a family car. I have taken these factors into account in making my assessment of the sum to be allowed for Megan's lost earning capacity.

There are thirty-four separate items or "sections" included in the plaintiff's particulars of claim. Some of these are not controversial and require a minimum of explanation or debate. Others have been the subject of a great deal of evidence and discussion during the trial. I will deal with each item either separately as claimed, or where appropriate, in conjunction with other items to which similar considerations are applicable. I have added pain, suffering and loss of amenities of life as Item 35.

Mr Tree submitted that, rather than attempting to make an assessment of damages by mathematical calculation and discount in respect of Megan's future needs, it would be preferable to make a broad overall appraisal and award damages on the basis of a single lump sum in respect of all components. There are, however, obvious objections to such a course in the present case. A large part of Megan's claim consists of immediately required expenditure to provide housing, facilities, equipment, treatment and care to maximise her prospects of comfort and future development. Such items may be assessed on the basis of present cost, and future recurrent expenditure for replacement, repair, or ongoing care and therapy may be realistically calculated by applying appropriate discounting percentages. Admittedly, an allowance must also be made for future contingencies which are not capable of accurate assessment in the same way, but this is a feature common to nearly all damages claims where there is an element of future cost.

As I have already mentioned, components of the claim, such as future lost earning capacity, are obviously more difficult to assess, because Megan has never worked and will never work. Her loss is, accordingly, difficult to forecast, but in a case such as this where, despite its overall magnitude, there has been reasonable moderation by the plaintiff's legal advisers in formulating and calculating Megan's requirements, that difficulty has been minimised.

I have also been aided in approaching damages in this way by the absence of significant conflict between the witnesses for the plaintiff and the lack of contradiction of those witnesses by defence evidence, in most respects.

Those issues of greatest contention were clearly identified by Mr Tree and, as will be seen from what I have said already and from what follows, I have attempted to isolate them for separate analysis.

Finally, it has been long recognised that a trial court should identify the various heads under which damages are assessed to aid the understanding of the parties as to the components of the claim and why some have succeeded, whereas others have failed, and also to assist the appellate court in a similar way in the event of an appeal.

These items are descriptive of the plaintiff's history and disabilities. Such issues have been dealt with elsewhere and no further discussion is necessary.

The basis and details of this claim are set out in the particulars. Those details need not be reproduced. However, the allowability of this claim was strongly contested and has been discussed above under the headings "Purpose Built Housing or Institutional Care?", and "the Cost of Providing a Purpose Designed Residence". As indicated, whilst I am satisfied a sum should be allowed under this head, I think the claim should be reduced to $450,000. That is the sum which I propose to allow.

Item 5 -- Household Heating Installation and Replacement Costs -- $59,193.16

This item has also been discussed above under the heading "Purpose Built Housing or Institutional Care?". As life expectancy enters into the calculations which have been made, it is appropriate that there be a discount for contingencies. I think the rate of discount attributable to this factor alone should be fifteen per cent. The calculations themselves are obviously not a certain guide to the future capital cost of providing heating equipment in the home and pool and this must also be taken into account. I will allow $49,000.

Elsewhere I have dealt with the reasonableness of allowing the capital cost of a hydrotherapy pool. That cost has been included in Item 4. This claim is in respect of maintaining the pool and keeping it heated to 33[infinity]C, as to which see my comments below in relation to Item 7. I consider it appropriate to apply a total discount of about twenty per cent, including fifteen per cent for life expectancy considerations. I will allow $16,450.

Item 7 -- Ongoing Household Running and Insurance Costs -- $122,115.15

This item, as formulated, includes recurrent expenditure on the home -- Council rates, heating costs (excluding the cost of the hydrotherapy pool which has been claimed separately) and household and special appliances. Mr Graeme Jacques, an insurance broker, gave evidence as to the availability of and the rates applicable to insurance of home, contents, appliances and motor vehicles which Megan will require. His report formed the basis of claims in respect of insurance. His evidence was plainly acceptable and his calculations persuade me that these claims are justified, subject to making an appropriate deduction for contingencies.

Mr Cooper and Ms Sammons both made the point that as Megan spends much of her time on the floor, it would be desirable to have an under floor heating system. Mr Tree submitted that this does not mean that the whole house should be heated in this way. I put to him that it would not be wise to put under floor heating in (say) two rooms and some other form of heating in the other rooms in view of the economies of scale which the one integrated system would be likely to achieve. I still adhere to that view. That some form of efficient heating must be provided is almost self-evident, in my opinion. Any new home in Tasmania which is efficiently designed must take account of heating requirements and allow for heat loss, insulation, and so on.

In Megan's case, however, there is an added reason for heating to be specially considered. Not only does she spend a lot of time on the floor, but she is exposed, in a state of undress, for a long time during bathing, toileting and other care type activities. Furthermore, Megan needs a heat source which will not be hazardous to her. An open fire or a fuel heater pose obvious dangers unless protected. They cannot be controlled efficiently as to heat output and for environmental reasons they may well be considered to be on the "undesirable" list.

Mr Singline, a consulting engineer, provided useful material including the estimated capital and operating costs of a suitable heating system, including heating for the hydrotherapy pool. Ms Xenitelis and Ms Sammons were very insistent that a predetermined and constant warmth is necessary in the hydrotherapy pool to ensure appropriate muscle relaxation and consequent therapeutic benefit for Megan. Mr Singline did no costings of a geothermal system, but estimated the capital cost would be higher than that which he was proposing and he also considered solar heating to be inappropriate. His reasons were convincing. His rejection of other alternatives was also equally compelling. Bearing in mind that his estimates are based upon the concept design produced by Mr Cooper, rather than an existing house and pool, I am nonetheless satisfied that his costings provide a useful guide, which, in the absence of evidence to the contrary, should inform my assessment under the appropriate headings which relate to heating, but, for the same reasons which appear to me to be valid in respect of the purchase and maintenance of a house, I think it plain that an appropriate allowance must be made against lost earning capacity for the likely expenditure which Megan would have incurred in later life when purchasing and living in a home of her own. I made that allowance in assessing lost earning capacity at $90,000.

I allow this item as claimed, but reduced by twenty per cent and rounded down to the nearest $1,000. It is allowed at $97,000.

Item 8 -- Plaintiff's Wheelchair Expenses -- $55,225.79

This item includes the projected cost of both manual and electrically operated wheelchairs for the future. The first sub-Item (No 8.1) which was initially challenged by Mr Tree was conceded by him during his final address. The costs have been carefully calculated and discounted for present value on the basis of the estimates provided by Ms Xenitelis. Ancillary equipment has been included. So too, has the cost of maintenance. The plaintiff's calculations are acceptable and were not challenged. In principle the costs which have been calculated in respect of childhood requirements should not be diminished for life expectancy contingencies but the projected adult costs should be.

On the other hand, there was a dispute as to whether or not Megan will be able to operate a motorised wheelchair. I have expressed my views on this elsewhere. Notwithstanding my general acceptance of Ms Sammons' evidence as to this, it is, I think, appropriate to allow an overall contingency discount against the possibility that motorised wheelchairs may not be required. I will allow a twenty per cent discount on the total claim and round it down to the nearest $1,000 to take account of these considerations. The item is allowed at $44,000.

Ms Susan Bailey, an experienced physiotherapist from Sydney with personal experience and knowledge of the David Hart Walking frame, says that Megan appears to be a suitable candidate for this device. Ms Bailey gave details of its operation and the likely cost involved in attending New South Wales for fitting and instruction. Ms Bailey also described a variant of the Hungarian Summer School conducted at Allambie Heights and gave details of curriculum activities. There is no need to refer to this evidence in detail. It is accepted as justifying both of these claims. As they are both items of expenditure which are likely to be incurred either immediately or in the not too distant future, it is inappropriate to apply any discount, in my opinion.

I allow Item 9 at $7,110 and I will allow the Hungarian Summer School cost when I come to it at Item 30.

Item 10 -- Miscellaneous "One Off" Items of Equipment -- $10,878.30

These were not challenged and I allow the item as claimed at $10,878.30

Item 11 -- Wheelchair Expenses - Registration and Insurance -- $2,011.92

I am satisfied that Megan will never be able to drive a wheelchair on public streets and accordingly this item is disallowed.

Item 12 -- Adjustable Hi-Lo Flex Bed -- $6,327.99

This item covers the purchase, maintenance and replacement costs of a specially adapted bed unit. As the initial cost is $3,295, and replacements are projected at only ten yearly intervals, it would be inappropriate to reduce this claim by more than ten per cent. I allow $5,696.

Item 13 -- Aids to Assist with Personal Care Skills and Toileting -- $41,885.03

This is a very detailed claim and has been calculated with care. The components claimed are in accordance with the evidence. That various toileting mediums are required irrespective of whether or not Megan achieves substantial bowel and bladder control cannot be doubted. A high proportion of the total cost claimed consists of immediate outlays for specialised equipment and, for the same reasons as expressed above, I consider it inappropriate to apply a discount exceeding ten per cent. I allow $37,700.

Item 14 -- Ongoing Aids and Appliance Needs -- $49,730.79

These items are also based upon the recommendations of the professional therapists who gave evidence. There is a substantial initial cost disclosed by the particulars, but in relation to one item in particular, the "upsuit" it is noted that this item's annual cost increases steeply in later years. This consideration, plus the life expectancy factor, leads me to conclude that a discount of about twenty-five per cent would be appropriate. I allow this item at $37,300.

Item 15 -- Communication Devices and Technology Needs for Early Communication and Access Training -- $2,881.11

These are all necessary pieces of equipment at the present time. I allow the item as claimed at $2,881.11.

Item 16 -- Augmentative Communication Devices -- $51,642.78

These devices were described in the evidence and consist of equipment which will assist Megan's capacity to communicate with others. I did not understand the defence to challenge all or any of this equipment on the basis that it would be beyond Megan's capacity to utilise it in some beneficial way. Accordingly, I think that a general discount of fifteen per cent only should apply here. I will allow $43,900.

Item 17 -- School Computer Requirements 1997 - 2002 -- $10,422.50

Mr Blow QC conceded that this item was overstated by $2,895. The defence contended that Megan is unlikely to be able to utilise this equipment which should be disallowed accordingly. I have already reviewed the evidence and announced my conclusions as to this. The item will be allowed at $7,527.50.

Item 18 -- Computer Needs for Home 1997 - 2002 -- $10,953.16

The same considerations apply here as applied to Item 17. Consequently this item will be allowed as claimed at $10,953.16.

Item 19 -- Computer Requirements for School 2002 - 2008 -- $7,701.44

These are future costs and there is always the chance that Megan will be unable to use this equipment. Although not advanced in argument, there has always been a tendency for electronic equipment to reduce in price as its use becomes more widespread throughout the community. This trend could occur with computers. Life expectancy is not a factor here. I will allow the item at $6,931.

Item 20 -- Computer Requirements for Home 2002 - 2008 -- $7,701.44

The same considerations apply as applied to Item 19. I will allow this item at $6,931.

Item 21 -- Computer Requirements for Home or in the Community from 2008 -- $19,644.79

There is a greater contingency factor to be applied in respect of these costs. Life expectancy enters into it. I propose to discount by about twenty-five per cent. The item is allowed at $14,733.

This item covers hoists for many purposes -- a ceiling hoist for the home, a pool lifting system, a mobile electric hoist and a van hoist. All will require renewal from time to time. The plaintiff's calculations have not been challenged but Mr Blow QC pointed out an understatement of his client's claim in respect of the pool lifting system. It was claimed at $17,923.44 but, by amendment which I allowed, it was increased to $19,323.86, an overall increase of the item to $55,033.85. In my opinion, the need for all hoists has been established. The replacement intervals are not challenged. The cost is spread over the plaintiff's assumed lifetime. I think a contingency discount of about fifteen per cent is appropriate. I will allow $46,778.

I have dealt with this in the body of my reasons. As there indicated, I allow $90,000.

Item 24 -- Lost Superannuation Entitlement -- $67,071

I also dealt with this item above. I allow $40,000.

Item 25 -- Loss of Chance of Support by Husband or Partner -- $100,000

This item should be dealt with and will be taken into account under the usual heading of "Pain Suffering and Loss of Amenities of Life". It is disallowed here.

Item 26 -- Attendant Care Costs -- $3,144,470.31

This item was increased upon my allowing an amendment by Mr Blow QC to raise the amount claimed in respect of projected case management fees from $63,647.59 to $199,186, making the new total claimed $3,280,008.72.

I have discussed various aspects of the evidence which affect this item in the body of the reasons and, as a consequence, I can indicate at once that the claim under Item 26.1 for past attendant care being made in respect of Heather's care of Megan from birth until approximately 30 June 1996 -- $549,402.88, is disallowed. Similarly, the claim in respect of attendant care at school up to the present amounting to $35,841.60 is disallowed.

As to the future cost of an integration aide at school, there is a problem. I cannot be sure how long Megan is likely to attend a normal learning institution such as Huonville Primary School for the reasons discussed in the body of the judgment. On the other hand, those potential costs must be acknowledged and I think it would be inconsistent with the principles which I have discussed if I did not allow the claimed cost of the future attendant care of the kind provided to date by Mrs Gatenby at $106,634.24. Perhaps there should be a contractual agreement between the Public Trustee and the relevant education authorities to provide this care at school for Megan at the sum allowed for the remainder of her school years to avoid any injustice either way. Such a situation could occur if Megan were to cease attendance at school for any reason or the education authorities, being aware that such a sum had been allowed as compensation, sought to charge recurrent fees for Mrs Gatenby's services at a rate which was likely to exceed the amount allowed.

Evidence was given by Ms Wendy Quinn as to the necessity or desirability of employing a case manager to co-ordinate the various therapies and services which the plaintiff will require. I propose to allow this part of the claim as amended, although I must say it seems very high at $199,186. Mr Tree submits that this service is likely to be provided free of charge by some government instrumentality, but I cannot act on that assumption.

The largest part of the plaintiff's claim under this heading is really the least controversial. Item 26.2 claims for attendant care from 30 June 1997 to 31 December 2008 on the basis that home care will be needed when Megan is not at school. The claim is quantified at $1,219,049.46. It is supported by the evidence and I allow it in full. In doing so I have not overlooked the fact that I have questioned the proposition that Megan will attend school full time until leaving age. If she does not attend Huonville, she may attend some form of specialist institution.

Item 26.3 claims attendant care from the beginning of the year in which Megan will turn 19 until the end of her life. The claim is quantified at $1,170,206.30 and will be allowed in full.

I therefore propose to assess Item 26 at the total sum of $2,695,076, subject to a discount overall of twenty per cent. I allow this item at $2,156,061.

Based upon Ms Sammons' assessment as to the plaintiff's need for occupational therapy for the remainder of her life, this sum is claimed. It consists of two parts. Firstly, a regime of three hours per week until Megan is 18, claimed at $169,956 and secondly, a regime of two hours per month thereafter, amounting to $16,304.67. In my opinion, it is not appropriate to discount the first part of the claim for contingencies. As to the second part, I will apply a discount of twenty per cent. In the result, therefore, I allow $183,000.

Mr David Emmett, a speech pathologist employed by Headway, who has worked with brain injured children, has examined Megan and concluded that she suffers from a severe form of dysarthria, ie, a non-functioning of the muscles controlling speech. He was of opinion that Megan had comprehension, understanding and normal hearing. He was of opinion that she would progress with speech therapy to a point at which she can communicate in two or three word sentences. This, however, will be a long process and may not be achieved for some years. I am of opinion that although the results are unlikely to be dramatic, the cost of this form of therapy should be allowed. The cost will be at its greatest between now and Megan's twelfth birthday.

I will allow that part of the overall cost as claimed ($39,419.25). The balance ($43,988.10) will be discounted at twenty per cent. I allow $74,610.

This item depends on the evidence of Ms Xenitelis. Ongoing therapy of this kind is plainly required. Like speech and occupational therapy, the greater part of the cost will be incurred over the next few years. I therefore allow the claim to 2008 as claimed ($52,051.60). The balance sum of $8,306.78 will be discounted at twenty per cent. I allow $58,697.

Item 30 -- Hungarian Summer School -- $51,029.08

I referred to this when dealing with Item 9. It will be allowed as claimed at $51,029.08.

Item 31 -- Recreational Requirements -- $110,291.17

This claim is in two parts. There was no evidence to support the first part in relation to Camp Bluebird. The sum of $3,894.18 will therefore be disallowed. The second part of the claim is based upon the evidence of Lyn Young, the manager of the Resource Development of Aged and Disability Support in the Department of Community and Health Services. She gave evidence of occupational support and leisure programs which are available for adults with severe disabilities.

The programs are government funded and the claim advanced is on the basis that if Megan wished to avail herself of these facilities, she is likely to be required to make a contribution equivalent to the government per capita subsidy currently being provided for a person with her relative degree of disability. I find it difficult to equate funding of such programs by this means to the likely cost to Megan if she wishes to avail herself of them, notwithstanding the fact that there seems to be no alternative yardstick to apply. The second part of the claim based on assumed lifetime utilisation of such facilities after age 18 and quantified at $106,396.99 seems to me to be highly speculative and it too should be disallowed. I therefore allow nothing underthis heading.

Item 32 -- Special Motor Vehicle Needs -- $164,489.54

It is obvious that a substantially modified vehicle will be required to move Megan from place to place. Mr Derek Wood, from the NRMA in Sydney, has had a good deal of experience in estimating the purchase, conversion and running costs appropriate to a claim of this kind. The best way of accommodating someone with disabilities as grave as Megan's is to convert a commercial van type of vehicle. There are several types available but there is no need to go into detail. Mr Wood's calculations, discounted appropriately for present value, support the item as claimed, both in respect of capital, running and ancillary costs.

I will assess the item at $164,689.54 but discount it by twenty per cent for contingencies.

Item 33 -- Fund Management Expenses -- $302,979.28

In Todorovic v Waller (supra), Mason J contemplated that a plaintiff recovering a large damages award may incur cost in obtaining professional advice and assistance to manage the fund and it is plain from the cases discussed in Luntz, 3rd edn, par4.1.10, that there is substantial authority to support the proposition that where the plaintiff is disabled from management of his own resources as a result of the tortiously caused damage by the defendant, such management costs should be recoverable from the tortfeasor.

Mr Tree did not seek to argue to the contrary. The sum now claimed, based upon Public Trustee Commissions therefore appears to be properly recoverable in this action. The putative commission on capital should be allowed on the total of the damages which I have assessed as follows:

2.5 per cent of the first $100,000 $2,500.00 2 per cent of the next $400,000 $8,000.00 1 per cent of the balance $3,482,917 $34,829.17 Total $45,329.17

Assuming the prompt expenditure of $1,000,000 on home, motor vehicle and other necessary equipment, there will be a balance of $2,982,917 to invest.

A commission on income of six per cent will be charged. The plaintiff suggests that the sum of $2,982,917 would be invested at seven per cent per annum. At current rates I think that is unlikely. I would assume an investment rate of six per cent returning income of $178,975 gross per annum ($3,442 per week). Accordingly, I assess the average weekly cost at $206.50. Discounted by the plaintiff's factor of 766, this works out at $158,179 for life. That sum must be further discounted by twenty per cent for contingencies. I therefore allow $126,543.

There is evidence to suggest that in the future the plaintiff could redevelop epilepsy but the risk is not great as she has not had fits since the time she was in hospital immediately after birth. There is also evidence that she could develop contractures from her tight muscles, but the risk of this is not high if, as anticipated, she receives regular physiotherapy and utilises her hydrotherapy pool to best advantage. Ms Xenitelis made the following observations in her report of 16 April 1995:

"Megan does not have contractures of her limbs as yet, however, she is developing tight muscles and is in danger of developing contractures. The areas which need constant attention and stretching as well as assistive splinting to keep the muscles stretched are: shoulders, elbows, hands, hip flexors, left knee flexors, calves and feet.

The main goal for Megan's physiotherapy treatment is to improve the stability and control of her head and trunk in all positions for functional activities. This will assist her in effective feeding, functional play and observation. Megan's muscular hypertonus is severe and requires careful monitoring and treatment to ensure that her threatening muscle contractures do not develop. Muscle contractures will limit Megan's ability to stand and sit in supported positions. Contractures will also present difficulties for her carer in dressing and bathing."

There is a possibility that Megan could damage her teeth while feeding by the inappropriate use of a metal spoon or cup. Again, the risk is not high. No evidence was given as to the likely cost of the resultant surgical, medical or dental treatment which may be required as a consequence, but the contractures could necessitate surgical release of the tight muscle structures. I think it would be reasonable to allow $2,000 under this heading.

Item 35 -- Pain, Suffering and Loss of Amenities

There is no evidence that Megan is in pain, but due to her insensitivity to painful stimuli, it is quite possible that she will inadvertently sustain some injury requiring treatment in the future. If she is or has been in pain, she is incapable of articulating her problem. As to suffering, it is also unclear as to the degree of appreciation which she may have for her predicament. She gets frustrated from time to time and displays her consequent exasperation. She is capable of laughing and crying and has impressed many witnesses with her apparent vivacity and ability to comprehend what is going on around her. In teenage years, many seriously injured youngsters become chronically depressed. They lack self esteem and feel alienated. No doubt the facilities which will now be available to Megan will assist in alleviating such problems if she does have an awareness of the dimensions of her plight. Her loss of life's amenities is almost total. She is devoid of the ability to perform any human function without assistance. She is impeded in all forms of communication. Her body writhes about almost incessantly unless she is asleep. She will never marry. She is incapable of meaningful sexual fulfilment. She will never have a husband to comfort and support her. She will never have children. She is virtually imprisoned in a world of her own. She has the faculties of vision and hearing but to what degree is not clear.

Never have I known a more gravely disabled plaintiff. She may improve with the facilities provided, but in comparative terms, the gains will be of modest dimensions. It has sometimes been said that the provision of substantial damages is itself a factor to be taken into account in reducing the sum to be awarded under this head. Be that as it may, a large award is plainly required. It should also contain a small component in respect of loss of life expectancy. I assess the plaintiff's damages under this head at $300,000.

Synopsis of Items assessed (rounded to the nearest dollar)

Item 5 -- Household Heating Installation and Replacement Costs

Item 7 -- Ongoing Household Running and Insurance Costs

Item 10 -- Miscellaneous "One Off" Items of Equipment

Item 11 -- Wheelchair Expenses - Registration and Insurance

Item 13 -- Aids to Assist with Personal Care Skills and Toileting

Item 15 -- Communication Devices and Technology Needs

Item 17 -- School Computer Requirements 1997 - 2002

Item 19 -- Computer Requirements for School 2002 - 2008

Item 20 -- Computer Requirements for Home 2002 - 2008

Item 25 -- Loss of Chance of Support by Husband or Partner

This is a very large sum of money and on that account alone one is tempted to reduce it to a lesser amount. Such a course is not acceptable, however. Damages should be moderate but that is a relative term. They should also be fair to both parties, but fairness requires full appreciation of the overwhelming magnitude of the plaintiff's disability as well as the budgetary impact of the claim on the defendant's resources. The plaintiff will never earn a dollar, but nearly everything she requires for the rest of her life will only be available at significant cost to her. It is highly likely that, having received this large sum of money, she will not qualify for Government assistance or benefits of any kind. In my opinion, final judgment should be entered in the plaintiff's favour for the sum assessed, viz, $4,109,460.