Moran v Nominal Defendant

[2008] NSWSC 804

Supreme Court of NSW|2007-09-24|Before: Hislop J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2007-09-24

Before

Hislop J

Catchwords

COMMON LAW - personal injury - assessment.

Source

Original judgment source is linked above.

Catchwords

COMMON LAW - personal injury - assessment.

Judgment (32 paragraphs)

[1]

Introduction 1 The plaintiff is a married woman, born on 14 October 1950. On 24 August 2003 she was a pillion passenger on a motorcycle which crashed when a bus encroached upon its path. 2 The plaintiff sustained significant closed head injuries in the accident as well as an avulsion injury to the left brachial plexus, fractured left radius and ulna, and a fractured left styloid. She was unconscious when conveyed by ambulance from the scene of the accident to the Prince of Wales Hospital. 3 The plaintiff's recovery was slow and incomplete. She was transferred from the Intensive Care Unit at the Prince of Wales Hospital to the Neurological Ward on 15 September 2003. She was transferred from the Prince of Wales Hospital to Sutherland Hospital on 15 October 2003. She came out of her comatose state on 3 November 2003. On 9 December 2003 she was transferred to the Brain Injury Rehabilitation Unit, Liverpool Hospital for further inpatient rehabilitation. After a period of weekend home visits, becoming more frequent and extending to Fridays and Mondays later in her convalescence, the plaintiff was finally discharged home from the Unit on 10 June 2004. She has continued to reside at home with her husband (Mr Moran) since that time. 4 As a consequence of the accident, the plaintiff suffers from the effects of a significant brain injury with cognitive and memory deficits. She has diplopia, a slight paralysis of the left side of the face and left hemiparesis. Her left arm is completely paralysed and she suffers neuropathic pain in that limb. She is right handed. She has a limited capacity to walk using a quadstick and generally uses a wheelchair to mobilise outside the house. She suffers bouts of despondency and depression and at times becomes angry, moody and uncooperative. She does not, however, engage in antisocial or risk-taking behaviour. 5 The defendant has admitted breach of duty. Accordingly, the proceedings are before the Court for the assessment of damages only. The plaintiff did not give evidence at the hearing. The defendant took no point in this regard. 6 During the course of the proceedings the parties reached agreement as to a number of heads of damage. That agreement is recorded in the parties' "Joint Statement of Agreed Heads of Damage" which I have initialled and placed with the court file. The remaining heads of damage are the subject of dispute and are considered hereunder.

[6]

(a) What level of care is required by the plaintiff? 13 The plaintiff is entitled to recover the reasonable cost of commercially provided care which is reasonably necessary and which flows from the injury inflicted upon her - Arthur Robinson (Grafton) Pty Ltd v Carter (1967-68) 122 CLR 649 at 661. 14 Mr Moran gave evidence that the plaintiff needed assistance drying herself after a shower, dressing and getting her food cut up. She needed standby assistance when rising from the supine position, to get out of a lounge chair or to walk. The plaintiff has particular difficulty if the walking surface is not flat and hard or if she is negotiating steps and stairs. There is a concern that in the absence of standby assistance she may overbalance and fall. She has worn a Pelican belt which has grab handles on it which a carer can access to prevent a fall. The plaintiff, however, prefers not to have the belt on and to have assistance from someone holding her clothing. The plaintiff is unable to drive a motor vehicle and requires the provision of transport. 15 The neurological injury suffered by the plaintiff has made her incontinent of urine. This problem has improved but from time to time assistance is required in this regard, mainly during the night. Mr Moran gave evidence that the plaintiff is very restless at night and her sleep may, from time to time, be disturbed by dreams. Her restlessness has caused him to sleep in another room. On her return home the plaintiff was incontinent of urine every night and a complete change of her attire and bed clothes was required on each occasion. However, over the last twelve months this problem has only occurred on one, two or three occasions per week. The plaintiff now wears incontinence pads and it is necessary only to change her night attire and not the bed clothes. There was evidence from Ms Vanderburg, a registered nurse employed by a care provider (Southern Cross), that incontinence products are now available that can "see a person through the night dry". The plaintiff, on occasions, will wake up during the night and request to be assisted to the toilet. The plaintiff tends to go to bed at 10.00 pm and rise about 5.30 am. 16 Mr Moran continues to be engaged in full time employment but outside of working hours he is the sole carer of the plaintiff. He considers he could not leave the plaintiff by herself. He has found the situation difficult as he has no freedom and his relationship with the plaintiff has become that of carer and care recipient. He desires to have freedom to engage in pursuits that interest him and to alter the relationship from carer and recipient to husband and wife. He said he would welcome the provision of an overnight carer for the plaintiff. 17 The bulk of expert medical opinion (Associate Professor Jones, Dr Buckley, Dr Faithful, Professor McLeod, Dr Spira) was that the plaintiff required full time care. 18 Associate Professor Jones, who was qualified for the plaintiff, concluded the plaintiff needed "a carer to be in her near vicinity for all her waking hours and on sleepover during the evening. This will not change throughout her life" as "her degree of brain damage and the physical problems both indicate to me that she requires somebody to be near her. In the first instance it is because of her poor cognition she minimises her problems. She is not realistic in her problems that she really has. And I think that, without somebody with her, she would be at risk from a cognitive point of view, in other words, make a silly decision. Also, from a safety perspective, she has a hemiparesis and is unstable, a paralysed arm and I think she is at risk of falling and therefore causing fractures and more damage." 19 Associate Professor Jones said: "The extent of her dependency on carers is she will need assistance in transferring, standby assistance in walking, assistance in washing, drying and dressing herself and assistance around the home, partly of a domestic nature." 20 Associate Professor Jones was strongly of the opinion that the care should be provided by an independent entity as, in his experience, loving spouses who provide care "have either deteriorated significantly themselves or the relationship has broken up". 21 Dr Buckley also agreed it was inappropriate for Mr Moran to provide the care, though Professor McLeod and Dr Spira considered the employment of a carer overnight was unnecessary as Mr Moran could attend to the plaintiff's needs in that period. The defendant conceded it was appropriate Mr Moran should no longer provide such care. 22 There was evidence from Ms Sandford, an occupational therapist qualified by the plaintiff, that the plaintiff required full time care and would continue to do so for the remainder of her life. 23 The defendant called Dr Henke, a consultant physician in rehabilitation medicine. Dr Henke had concluded in his report that the plaintiff "does not need the presence of a person with her at all times. She is not subject to epilepsy or to other medical emergencies which would render her incapable of requesting help."

[8]

(b) Should the care be provided by live-in carers or carers working in shifts? 27 The need to have someone with the plaintiff at all times and to provide care may be met by either a live-in carer or shift carers. 28 The plaintiff submitted that provision should be made for future care for 24 hours per day 7 days per week to be delivered by three 8 hour shifts and with at least two of those shifts, if not all three, being active shifts. It was submitted the costs should be calculated on the basis of the cost scale of APC as that organisation had been providing care for the plaintiff at the defendant's insurer's expense for some years, APC rates had been accepted following negotiation by the insurer as fair and reasonable and the plaintiff was familiar with many of its carers. 29 The total cost of providing 24 hour care on a shift basis depends, in part, upon whether the night shift is classified as active or inactive, the rate for an inactive shift being substantially less than the rate for an active shift. 30 Southern Cross, an organisation which provides care on a shift basis, defined an inactive sleepover as: "an eight hour period where the Service Personnel are allowed to sleep on duty. If the Service Personnel is required to attend the Service User for more than one hour in total during the night, or attends the Service User more than twice, then the whole eight hour shift is paid at the full standard hourly rate." 31 Associate Professor Jones and Dr Buckley were of the opinion that the night shift in this case would be properly classified as inactive. 32 Ms Vanderburg was cross examined as to the problems encountered by Mr Moran during the night with the plaintiff. In re-examination she gave the following evidence: "Q. If you assume that the incontinence occurs between one and three times a week, that there is a toilet request made every night so that is one get up for sure, and that there are some other nights when there are dreams and disturbances, does that sound to you like it could still be managed on an inactive sleepover? A. Yes." 33 In my opinion, if care was to be provided by a shift arrangement, two active shifts and one inactive shift would normally be appropriate though, on occasions the night time attendances on the plaintiff may exceed the inactive shift limit. 34 There was evidence of the rates charged by six organisations which provide shift care. The evidence revealed a wide range in such rates. An impression of the difference may be gained by comparing the hourly day rates from Monday to Friday which were as follows:

[13]

(d) In determining such issues the court must hearken to all the evidence including the opinions of medical practitioners but, having done so, to come to its own conclusion on the question, not being bound to any opinion, however expert or apparently expert any witness expressing it may be - Arthur Robinson at 662. 39 Drs Henke and Spira, who were qualified by the defendant, were each of the opinion that full time paid care was not required. Dr Henke stated that "Given there is only a requirement for assistance during the day periods there is no indication for any live-in assistance." Dr Spira considered there was no requirement for professional care at night. Neither doctor compared the advantages and disadvantages of full time live-in care with full time shift care. Ms Tredenick, a registered nurse and the Clinical Services Manager of Eldercare, had assessed the plaintiff's needs and had concluded live-in care would be best suited to those needs. 40 Associate Professor Jones gave evidence that although he had seen successful live-in care arrangements, his experience led him to conclude live-in care was a less stable arrangement and more prone to failure than a shift regime and that live-in care was not his preferred option. The reasons advanced by Associate Professor Jones for his preference seemingly were that he considered there was a risk a live-in carer may become too emotionally involved with the patient, and it was easier to replace a person for a shift than for a three day live-in period if the carer became unwell. 41 Dr Buckley's opinion was that shift work carers were the best means of providing care in this case, with a person sleeping over in the house at night. He agreed it was quite likely he had given evidence in other court proceedings that "if live-in care was available, then I believe it is preferable for brain injured patients". He explained it was necessary to try and come up with the most satisfactory arrangements for a particular patient and that particular patient's circumstances. 42 He gave evidence: "There are advantages and disadvantages attached to each kind of option of care in this case. So there are definite advantages in having live-in carers and there are definite advantages in having shift work carers. There are disadvantages in both circumstances."

[23]

Case management 53 The duties of a case manager are essentially those of overseeing and coordinating the patient's maintenance programme, liaising with all agencies, doctors and others involved in his or her care, and acting as the patient's advocate when appropriate. 54 The plaintiff's present case manager is a member of the Liverpool Hospital Brain Injury Unit. Meetings are held at the unit about once every three months with the case manager, treating doctors, physiotherapists, occupational therapists, a representative of the carer, the plaintiff, her carer and Mr Moran. The meeting affords an opportunity for any concerns for the plaintiff's treatment or care to be considered and appropriate action taken. Mr Moran is satisfied with the plaintiff's treatment at the Brain Injury Unit and content that the plaintiff should continue to go there. The case management is provided for four hours each quarter at $120 per hour. 55 There was evidence from both Dr Buckley and Associate Professor Jones that it was unlikely the care at the Unit would continue. As Associate Professor Jones explained, such units do not have the staff to continue input to patients in the long term and over time the input would diminish and the care would be passed to a general practitioner, though the plaintiff would always need a case manager of some description. 56 Dr Buckley gave evidence that the case management required by a patient with brain injury on a routine basis was eight hours per month of active involvement for the first six months and at the commencement of any significant new arrangement such as moving to a new home or changing nursing agencies, say every five years, and thereafter for four hours per month plus any travelling time that might be required. The plaintiff submitted that Dr Buckley's prescription would be accepted by the Court. 57 Dr Buckley's assessment was well in excess of that suggested by other witnesses. Associate Professor Jones considered that the need was one hour per month. Ms Sandford estimated an overall need of two hours per month; Professor McLeod considered a case manager who the plaintiff consulted twice per year would be an advantage. Ms McMaster considered that twice annual review was appropriate and would allow four hours annually. Dr Henke did not consider there was a need for a case manager at the time of his consultation with the plaintiff in 2007. 58 Associate Professor Jones confirmed that in practice there was a substantial reduction in case management as time passed and case management became largely the province of the general practitioner, family and care provider. Ms McMaster confirmed this evidence. 59 In my opinion, the case management presently provided is reasonable and adequate for the plaintiff's needs. It is probable that in the future fewer hours of case management will be required but there may be some occasions when particular circumstances will require a greater input for a time. 60 The defendant does not dispute that four hours of case management per quarter is appropriate. It submitted that appropriate compensation would be afforded by allowing the plaintiff compensation at four hours per quarter at $120 per hour. The defendant accepted that there would be some additional case management required if there were changes in arrangements but submitted this should be offset by the decline in the hours of case management with the passage of time. 61 I accept the defendant's submission which is in accordance with the case management presently provided, is more generous than the allowance suggested by the majority of witnesses and takes account of the likely reduction in future case management. 62 I allow this head of damage at $120 per hour for 16 hours per annum.

[30]

Conclusions 85 A copy of the preceding remarks was circulated to each of the parties to enable them to reach agreement as to the final figures to be included in the verdict and judgment. The parties have advised the Court of the agreed figures and of the appropriate deductions to be made from the judgment. The relevant figures are contained in a document headed "Consent Orders" dated 12 August 2008 and signed by the legal representatives of the parties. I have placed a copy of that document in the court file. 86 The agreed figures accord with the parties' joint statement of agreed heads of damage save for an increase in the items of non economic loss and past out of pocket expenses to $381,000 and $986,149.39 respectively and include figures for the heads of damage future care, case management and domestic cleaning calculated in accordance with my determination of those matters. The sum of $466,314.80 is agreed for fund management. 87 Insofar as part of the verdict comprises heads of damage which were the subject of settlement between the parties, I approve such settlement for the purposes of the Civil Procedure Act, 2005, Pt 6, Div 4. 88 I note it is agreed by the parties that the defendant is to have credit for payments made for and on behalf of the plaintiff to the date of judgment in the sum of $978,921.14 and to have credit for any further payments made by it until the judgment is paid. I also note that it is agreed by the parties that the sum of $4676.20 is to be deducted from the judgment sum and paid to Medicare Australia. 89 I note it is agreed the judgment sum, after the deduction of the payments made by the defendant on the plaintiff's behalf and the sum of $4676.20 to Medicare Australia, is to be paid into court pending further order. 90 I summarise the assessment of damages as follows: Non economic loss $381,000.00 Past out of pocket expenses $986,149.39 Past economic loss $100,000.00 Future economic loss $235,000.00 Past superannuation $11,000.00 Future superannuation $25,850.00 Past care $170,000.00 Future care $2,959,451.60 Other future care $4,000.00 Future medical management $109,401.00 Future special equipment $72,500.00 Future medication $83,940.00 Accommodation $600,000.00 Future travel $110,000.00 Future computer $5,000.00 Future motor vehicle $135,000.00 Case management $30,993.23 Domestic cleaning $30,218.40 Funds management $466,314.80 Verdict and judgment $6,515,818.42

Moran v Nominal Defendant

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Judgment (32 paragraphs)

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