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[2009] WADC 201
General information, not legal advice.
District Court of WA
2009-12-22
Gibbs CJ, Wilson J, Stephen JJ
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : MICHAEL AARON JAMES (by his next friend RHONDA DAWN JAMES) -v- GRANT [2009] WADC 201
BETWEEN : MICHAEL AARON JAMES (by his next friend RHONDA DAWN JAMES)
Damages - Personal injuries - Brain injury - Plaintiff 27 year old man with Down Syndrome - Life expectancy - Future care requirements - Home modification expenses - Future gratuitous services - Equipment and vehicle expenses - Holiday expenses - Future medical expenses - Turns on own facts
Malec and JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Morris v Zanki (1997) 18 WAR 260
Pettersen v Bacha (1995) 21 MVR 71
Sharman v Evans [1977] HCA 8; [1977] 138 CLR 563
Sosa v Carter [1978] WAR 123
Thurston v Todd [1966] 1 NSWR 321
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402
Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523
1 The plaintiff, who has Down Syndrome, was injured on 4 June 1997 when the bicycle he was riding was struck by a vehicle being driven by the defendant. Liability has been admitted. As a result of his injuries, the plaintiff's life expectancy has been shortened and he requires 24 hour care.
2 My task is to assess damages estimating as best I can a sum which is "most likely to provide fair and reasonable compensation": Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 per Gibbs CJ and Wilson J at 413. In relation to the cost of accident caused expenses to be incurred in the future, reasonableness must be judged having regard to the benefits which will accrue to the plaintiff: Sharman v Evans [1977] HCA 8; [1977] 138 CLR 563 per Gibbs and Stephen JJ at 573.
3 The parties have agreed many heads of damage. Although there are a number of issues to be decided, the main issues in dispute are the plaintiff's probable life expectancy and whether the plaintiff should receive active, as opposed to passive, care at night.
4 I have decided that the plaintiff's probable life expectancy is 22 years and that he should have active care at night. I have made other findings concerning aspects of his future care, the provision of future gratuitous services, accommodation, equipment and holidays. I will give the parties the opportunity to consider these reasons and make calculations, where necessary, in accordance with my findings. I propose to make orders on 22 January 2010.
6 The plaintiff was born on 18 January 1982. At the date of the accident, he was 15 years old. He is currently 27.
7 The plaintiff was born with Down Syndrome. Up to now, he has lived all his life with his parents, Rhonda and Paul James. He has two older sisters, Pauline and Melissa. The plaintiff has always lived in or about the Bunbury/Harvey region. Currently he lives in Eaton, a short distance north of Bunbury. His sisters live independently in Perth.
8 Down Syndrome is a chromosomal disorder caused by the presence of all or part of an extra 21st chromosome.
9 All individuals with Down Syndrome have some degree of intellectual and physical disability. The symptoms of aging occur earlier in people with Down Syndrome. Alzheimer's Disease will eventually affect a person with Down Syndrome and can impact 15 to 20 years before a person in the general population and as early as 40 years of age. However the data as to the precise impact of Alzheimer's Disease is very vague (T304).
10 The level of intellectual and physical impairment varies substantially between individuals.
11 The plaintiff's Down Syndrome was, prior to the accident, mild. Physically, the plaintiff was born with a small hole in his heart but this spontaneously healed. Apart from this, he experienced no real health problems. He had no history of epilepsy or respiratory disease.
12 In terms of his intellectual development, although throughout his school career he spent some of each school day in an education support class, he was also able to participate in some mainstream classes. He learnt to read, write and carry out basic mathematical skills. In her evidence, his mother said that at about the time of his accident, his reading, writing and mathematical abilities were about year 4 level (T157).
13 The plaintiff, prior to the accident, interacted well with children and was socially active. He played basketball and cricket. At the age of 9 he learnt to ride a two-wheeler bicycle and motorcycle.
14 He was able to walk around his neighbourhood on an unsupervised basis and go to the local shop to buy such things as milk and bread. He was assigned and performed household chores. He would catch the school bus. By the time he was 10 or 11 he was a confident swimmer.
15 Before the accident, the plaintiff was able to wash, dress and toilet himself, cook simple meals and go fishing and camping with his father.
16 The plaintiff's parents had hoped that after he left school he would be able to enter the wider workforce and obtain employment as a shelf-stacker, cleaner or as a trade's assistant, albeit that it was recognised that he would require supervision in whatever employment he undertook.
17 The plaintiff's parents had also hoped that he would leave home in due course and live independently with a friend that he met at school named Casey Sheppard. The hope was that they would share accommodation together.
19 Immediately after the accident, the plaintiff was hospitalised at Bunbury Regional Hospital for three days. There a CT scan taken soon after his admission showed a relatively minor right frontal haematoma to the plaintiff's brain (Dr Peter Walsh 17 July 1999 Exhibit 20 p 169). This type of injury would not normally have produced significant long term problems, but for the plaintiff, it has (Professor Gubbay 2 December 2004 Exhibit 26 p 5). The exact reason or reasons for this are not precisely known. Nevertheless, it is accepted that the plaintiff's brain injury has caused serious and permanent intellectual and physical disabilities.
20 Shortly after the accident, the plaintiff's parents observed a marked and serious deterioration in his physical and mental health. Most notably, he began suffering from frequent and debilitating seizures, which have been categorised as follows:
21 In or about December 1997, the plaintiff was diagnosed with epilepsy. It is not disputed that the accident caused the epilepsy.
22 The plaintiff has suffered, and continues to suffer, epileptic seizures which, notwithstanding various medications and treatments, have proved impossible to control. The plaintiff will continue to suffer on a permanent basis from frequent epileptic seizures. The first two types of seizure can occur on a daily or almost daily basis while grand-mal seizures occur unpredictably but less frequently, usually at night.
23 The plaintiff's epilepsy combined with the side effects of his epilepsy medication have resulted in the plaintiff experiencing an increased loss of coordination, reduced intellectual function, slurring of speech, difficulty in swallowing, drowsiness and lethargy, urinary and faecal incontinence and breathing difficulties.
24 Although the plaintiff returned to school after the accident, he was frequently absent due to his ill health and he ceased all attendance at school in about 2000.
25 In mid-2001, probably as a result of aspiration of some of his stomach contents into his lungs, the plaintiff developed severe bilateral pneumonia which led to acute Respiratory Distress Syndrome and acute renal failure. His condition was life threatening and he was on life support for a period of time at Royal Perth Hospital. The plaintiff survived this ordeal and recovered his renal function, however, he did not recover his respiratory function.
26 After his discharge from hospital and ever since, the plaintiff has required supplementary administration of oxygen on a 24 hour per day basis. Without supplementary oxygen, the plaintiff's oxygen level desaturates quickly to a dangerous level. (Dr de Chaneet, Exhibit 20 p 34) The plaintiff's respiratory dysfunction is not as a result of lung disease, rather he suffers from an accident related condition called alveolar hypoventilation. This is a condition where a person does not breathe in enough because of an abnormality of the ventilatory control of the brain (Dr de Chaneet, Exhibit 20 p 35).
27 While at Royal Perth Hospital, the plaintiff contracted Methicillin Resistant Staphylococcus Aureus ("MRSA") which is a type of golden staph. The plaintiff's MRSA is chronic and requires frequent antibiotic and topical treatments. The plaintiff is also infectious and those who care for him and come into contact with him, require precautions to ensure that they do not become cross-infected. The treatment of this condition is complicated because the plaintiff also suffers from chronic and unsightly skin inflammation and sores, particularly, on his back. Because of the risk of cross-infection, it is necessary to carry out and maintain a rigorous regime of cleaning, washing and showering. This regime includes the plaintiff's body and any surface he comes into contact with.
28 In 2006, the plaintiff suffered another episode of pneumonia which, although not as serious as the episode in 2001, required him to be hospitalised (Dr de Chaneet, Exhibit 20 p 40).
30 The plaintiff is connected to an oxygen machine known as a concentrator during the day. The oxygen is administered to him by a Hudson mask. When the plaintiff eats or exercises, oxygen is administered by nasal prongs.
31 In November 2006 the plaintiff was placed on a ventilator at night which is connected to him by a full face mask. This machine was described in the evidence as a BPAP or a VPAP machine. For the sake of consistency I will refer to it as a VPAP machine. This aid has proved most effective in controlling his breathing and oxygen supply whenever he sleeps as well as his sleep apnoea. He will require it for the rest of his life.
32 The concentrator and VPAP machines are electrically powered. If the electricity supply fails, oxygen is administered to the plaintiff from portable oxygen cylinders. He also uses these cylinders when he leaves the house.
33 The plaintiff now leads a largely sedentary life and has become obese. He receives regular physiotherapy designed to help his respiratory function and maintain some level of physical fitness. The plaintiff is able to walk short distances and stay upright. I have viewed a DVD lasting approximately 55 minutes entitled "A day in the life of Michael James" which was made earlier this year (Exhibit 2). This DVD shows, amongst other things, the plaintiff performing various exercises including boxing a light-weight static plastic target, singing and dancing a little. Although not shown on the DVD, he ,from time to time, goes to a pool and swims. As I understand it, this is in the nature of water therapy where he wades or swims with the aid of a foam "noodle" in order to build up his respiratory and muscle function.
34 Because of the risk of seizure, in coordination and lethargy, the plaintiff uses a wheelchair when he goes out. He has the capacity to self propel the wheelchair for short periods but usually his chair needs to be pushed by someone.
35 The plaintiff presently has a very basic non-adjustable fold-up wheelchair which is placed in a Kia Carnival van which his parents own. He also has a more comfortable, functional and adjustable wheelchair known as a Quickie Iris. This wheelchair does not fit in the Kia van.
36 The plaintiff is able to do very little for himself. He no longer has the relative independence of function that he had prior to his accident. It is not disputed that he requires constant care 24 hours per day 7 days per week. He must be assisted and supervised in almost every function of his life including dressing, toileting, eating and drinking, recreation and movement.
37 He is currently under the care of a number of health professionals including his general practitioner, Dr Lee, a neurologist for his epilepsy, Dr Walsh, a urologist for his bladder and continence conditions, Dr Yin, a consultant physician principally to manage his respiratory function, Dr de Chaneet and a specialist in infectious diseases, Dr Golledge.
38 In addition, the plaintiff receives physiotherapy each week and less frequent assistance from an occupational therapist, a speech pathologist, a dietician, a continence advisor, a podiatrist and another general practitioner who prescribes the plaintiff various vitamins, minerals and probiotics.
39 The plaintiff will require, for life, access to health professional of the type I have just mentioned and various medications, aids, and equipment to deal with his many health problems and ongoing care.
40 The effects of the accident have all but destroyed his quality of life. He will never be employed in the paid workforce. His life expectancy, which was reduced because of his Down Syndrome, has been further reduced.
41 The plaintiff is constantly at risk from the effects of choking and aspiration of his stomach contents into his lungs. This is because the plaintiff has difficulty swallowing his food and drink and also because, during epileptic seizures he loses control of his swallowing mechanism. Aspiration into the lungs can have serious and even fatal consequences because of the risk of infection. In order to alleviate these risks, since about August 2007 the plaintiff has been placed on a regime where his food is cut up into small pieces and lubricated and any fluids he drinks are thickened.
42 For the past 12 years, the burden of the plaintiff's care has fallen on the very capable shoulders of the plaintiff's mother. She has devoted her life to the plaintiff's welfare and has shown exceptional dedication and competence in looking after him. She has, in this regard, been assisted, when they can, by her husband and her daughters. Without doubt her work has been arduous and stressful.
43 Presently, the defendant's insurer, the Insurance Commission of Western Australia pays for a carer for the plaintiff for 12 hours per day. At the moment one carer, Carly Brown, cares for the plaintiff for the whole 12 hours 9 days each fortnight. On the other 5 days, two carers share the load with each carer being on duty for 6 hours.
44 The Disability Services Commission is providing funding for another person to work 22 hours per week. Currently that person does the cleaning and other household chores. This person does not come every day.
45 The plaintiff's mother provides the care at all other times, including, at night. While she does not stay with him in his room and observe him on a constant one-on-one basis, she gets up frequently in the night to check her son and to ensure that his VPAP mask is fitting properly.
46 Mrs James, at the present time, coordinates the plaintiff's carers and all his medical and other needs. She has a very detailed knowledge of her son's conditions and care requirements. She makes and records medical observations relating to his conditions. These observations are made available to the plaintiff's doctors and other health care providers, and have proved helpful to them.
47 Mr and Mrs James have recently completed renovations of their house in Eaton which were designed to cater for the special accommodation needs of the plaintiff and his carers. Until these renovations were completed, their house at Pratt Road Eaton was not really adequate for the plaintiff's needs.
48 At the time that these renovations were planned and undertaken, it was intended that the plaintiff would remain home with his parents. However, those plans have now changed. The plaintiff's mother believes it is now time for her to step back from being her son's carer. The present plan is for a project home to be built for the plaintiff close to where his parents live in Eaton and for that home to be modified for his needs.
49 With respect to his care, it is proposed that that be taken over by a team of paid carers coordinated by a specialist case manager with the assistance of a registered nurse.
50 Both parties have provided me with detailed schedules of damages.
53 I will refer to these matters later in these reasons. Each item is subject to approval under O 70 r 10 of the Rules of the Supreme Court 1971.
54 It is not disputed that the plaintiff is entitled to damages in some amount in relation to the following items:
55 As to many of these items, the dispute will be resolved by a determination of the plaintiff's future life expectancy. However, in some of these items the defendant's position is that parts of the plaintiff's claim are not needed or unreasonable or both.
56 The most critical issue for me to resolve is the question of the plaintiff's life expectancy. The amount of damages the plaintiff recovers will depend in large part on how long I think he will live. As most of the items in dispute relate to the cost of his future care, the longer he lives the more his care will cost. This finding will determine the 6 per cent multiplier that must be applied to the calculation of those recurring heads of damage that will be paid for life.
57 The task which I have to perform is an unenviable one. As will become apparent, although there was agreement as to the factors which potentially reduce the plaintiff's life expectancy and how they might most effectively be alleviated, there were significant differences of opinion between the experts on how long he might live.
58 All of the experts agreed that the plaintiff's life expectancy, already reduced by Down Syndrome, has been further reduced because of his accident related injuries. A number of experts emphasised how difficult the matter was and how imprecise their estimates were. Dr David Burke, a rehabilitation physician called by the defendant, described such an opinion as an "educated guess" (report 22 May 2009 Exhibit 26 p 3). Dr Eli Gabbay said at T514 that the best he could do was give an "educated estimate". Certainly, no one can say precisely for how long the plaintiff will live.
59 Some of the difficulties facing a trial judge deciding a person's life expectancy were starkly described by Handley JA in Pettersen v Bacha (1995) 21 MVR 71 at 71-72:
"The trial judge was exercising an awesome responsibility in determining the plaintiff's probable life expectancy. A significant underestimate could amount to a sentence of death imposed by a civil court. On the other hand, if the judge overestimated the plaintiff's life expectancy, the result would be a windfall for others."
60 According to the Australian Life Tables 1997 - 1999 the ordinary life expectancy of a male person aged 27 is a further 50.59 years. However, because the plaintiff was born with Down Syndrome, his life expectancy is less then the ordinary male life expectancy.
61 Professor Alan Bittles, a human geneticist with a special interest in Down Syndrome, was called by the plaintiff. Since 2000, Professor Bittles has been involved in a number of studies into the life expectancy of persons with Down Syndrome. Professor Bittles said that those studies revealed that there has been "a highly significant increase in the life expectancy of people with Down Syndrome which appears to have commenced during the 1950s, with evidence of an acceleration in the life expectancy from the 1980s onwards." He went on to say that during the period between 1951 and 2000 the life expectancy of a person with Down Syndrome increased by an average of 0.94 life years per calendar year. He said that this rapid rate of increase has "probably slackened" and is no longer at this level (T300). He said that the difference in life expectancy between people with Down Syndrome and the general Australian population has narrowed to approximately 20 years.
62 Professor Bittles was provided with information about the plaintiff's schooling and general health prior to his accident. In his opinion the plaintiff "was very probably in the upper range of achievement for persons with Down Syndrome with mild intellectual disability (IQ range 55 to 69)". Professor Bittles also noted that the plaintiff had "relatively minor physical problems" associated with his Down Syndrome before the accident. He concluded that prior to the accident, the plaintiff would have had "a mean life expectancy of approximately 65 years". At T303, he characterised this estimate as "realistic".
63 Although other experts, notably Dr Buckley and Professor Gubbay, referred to shorter pre-accident life expectancies, each acknowledged that their information was out of date and deferred to Professor Bittles' expertise. Based on Professor Bittles' opinion, I estimate the plaintiff's pre-accident life expectancy as 65 years. In other words, prior to the accident, he could have reasonably expected to live another 38 years having already attained the age of 27.
64 The plaintiff's case is, having regard to all of the circumstances and all of the expert opinion, that a reasonable estimate of the plaintiff's remaining life is 29 years.
65 The defendant's case is that the plaintiff is likely to survive another 15 to 18 years. Mr Clyne, submitted that, 18 years was a just estimate. Mr Clyne submitted that if I decided 18 years was too short, I should discount any higher figure for adverse contingencies.
66 I will examine, in greater detail, the expert evidence on the subject of the plaintiff's life expectancy. However, all of the expert opinion recognised that the main risks to the plaintiff's life expectancy are alveolar hypoventilation and epilepsy. In addition, other risk factors were acknowledged. The most significant of these were:
(i) respiratory tract infections generally including those caused by the spread from the plaintiff's skin infections;
67 The plaintiff's medical problems are various and complex. While each risk factor can be identified separately, I recognise that they are, to some extent at least, inter-related. For example, during an epileptic fit, a loss of muscle control may result in the plaintiff swallowing mechanism being further compromised with an increased risk of aspiration. Another example is that the plaintiff's anti-epilepsy medication depresses his respiratory drive and so contributes to his alveolar hypoventilation.
68 The plaintiff has alveolar hypoventilation. It is not disputed that because of this condition, the plaintiff is at risk of developing pulmonary hypertension and consequent right heart failure.
69 Dr Eli Gabbay, a respiratory physician with a special interest in pulmonary hypertension was originally retained by the plaintiff to provide expert evidence in this case. In the end, he was called by the defendant. Dr Gabbay saw the plaintiff on two occasions, on 15 July 2005 and 14 May 2009.
70 Dr Gabbay explained that low oxygen levels caused by alveolar hypoventilation can constrict the pulmonary blood vessels from the right side of the heart to the lungs. As a result, the walls of these vessels thicken and pressure within them rises. This puts additional pressure on the right side of the heart. The right side of the heart, unlike the left side, is not used to higher pressure levels and minor elevations in pressure can cause the right ventricle to dilate. This can cause the right ventricle to fail leading to cardiac death.
71 Dr Gabbay said that the best way to diagnose pulmonary hypertension is by echocardiogram although, he said, by the time the condition is diagnosed it is usually quite advanced. In 2006 the plaintiff had an echocardiogram which did not reveal the existence of pulmonary hypertension.
72 Dr Gabbay said the best measure to lower the risk of pulmonary hypertension and consequent right heart failure was effective oxygen therapy and in particular the nightly use of the VPAP machine. While there are drug therapies, there is as yet, he said, no good data as to their effectiveness in treating the type of pulmonary hypertension the plaintiff is at risk of developing.
73 Dr Gabbay's opinion in 2005, before the plaintiff commenced VPAP therapy, was that there was a 60 per cent risk over 10 years that the plaintiff would develop these conditions (report 10 March 2006, Exhibit 20 p 64).
74 However, in light of the successful introduction and use of the VPAP machine every night Dr Gabbay's view was that the plaintiff's long term prognosis had significantly improved. Under cross-examination from Mr Lampropoulos, he said that the plaintiff's risk of developing pulmonary hypertension in the next 10 years was in the order of 30 per cent (T529). When asked about the reference period of 10 years, he said that he used that period when dealing with his patients who had undergone lung transplants and that it was easier to say what was likely to happen in 10 years compared to what was likely to happen in a year (T525). He said that once severe pulmonary hypertension is diagnosed, death from heart failure would likely occur within 5 years or so (T531). He was not asked about the risk of pulmonary hypertension developing over a period longer than 10 years.
75 In Dr Gabbay's report dated 12 May 2009 (Exhibit 24 - the date of this report is incorrect, the report refers to Dr Gabbay's review of the plaintiff on 14 May 2009 and so must have been written after that date) he said that the plaintiff had made good progress since he had last seen him in 2005. Dr Gabbay acknowledged that the plaintiff was receiving appropriate therapy on VPAP with supplemental oxygen. He remarked that Dr de Chaneet was in a better position than he to comment on the adequacy of the current therapy being used to control the plaintiff's alveolar hypoventilation. He made the point in this report that there was no evidence of any pulmonary hypertension or right ventricular dysfunction.
76 In Dr Gabbay's report dated 3 June 2009 (Exhibit 23) he said:
"The primary long term risk is the development of progressive respiratory failure and subsequent cor pulmonale with pulmonary hypertension and right ventricular dysfunction and subsequent death from progressive right ventricular dysfunction or sudden cardiac arrhythmia."
".... - what is likely to happen with Mr James over time is that even with the best therapy, the VPAP, it's not the same as not having alveolar ... hypoventilation. So he will ... always, even with good therapy, not be normal. And over time, this will result in this vascular change that I was talking about earlier in the lungs' circulation. That actually is what cor pulmonale means. It means the development of pulmonary hypertension secondary to lung disease. And so, ... there will be changes in Mr James' pulmonary vasculature ... and progressive remodelling and constriction and progressive elevation in pressures and subsequently problems with the right side of the heart."
78 Dr de Chaneet, the plaintiff's treating respiratory physician, in his report dated 21 May 2009 (Exhibit 20, p 46) acknowledged that there was a risk that the plaintiff would develop pulmonary hypertension, but did not assess the chance of the condition developing. He was not asked in evidence to assess the chance in his evidence, and he did not specifically comment on Dr Gabbay's estimate as to the plaintiff's life expectancy.
79 With respect to the plaintiff's epilepsy, there is no question that it is severe. Despite the best efforts over a long period of time by his neurologist, Dr Peter Walsh, it has proved impossible to control and there is nothing to indicate that it will be controlled in the future.
80 The plaintiff's epilepsy poses several threats to his wellbeing. The first is that he may suddenly collapse and injure himself. In late 2007 the plaintiff had a seizure whilst standing beside a therapy pool and as a consequence he fell into the pool landing on his head and the back of his neck. He suffered a fracture to his neck at the T1 level which has subsequently healed. This episode is a sobering reminder of the risk of serious injury caused by the plaintiff's epilepsy. The second risk posed by epilepsy is the risk of aspiration. The plaintiff's frequent fitting could result in what Dr Gabbay described as "chronic aspiration", that is, aspiration of small amounts of stomach matter which over time damages the lung. Although the plaintiff has suffered two serious episodes of acute pneumonia, the first of which was thought to be as a result of aspiration, there is no evidence of lung damage relating to chronic aspiration. The third risk posed by the plaintiff's epilepsy, according to Professor Sasson Gubbay, the specialist neurologist called by the defendant, is an increased chance of a condition known as Sudden Unexpected Death in Epilepsy. At T567, referring to this phenomenon, he said:
"Nobody knows quite the mechanism of that. It's probably a cardiac type of death, and it occurs relatively frequently in patients with severe epilepsy who have also got other problems, such as in this case."
82 Because the plaintiff's respiratory system is compromised he is generally more susceptible to common respiratory infections. The effect of those infections can be serious for the plaintiff. Dr Gabbay assessed the possible effects of respiratory infections as varying from mild to potentially life threatening. Further, the undisputed evidence of Dr Clayton Golledge, who has been treating the plaintiff on a regular basis since 2004, is that the plaintiff has, what he described as "established, very abnormal skin" (T406) and that he has chronic MRSA. Dr Golledge was of the view that the plaintiff will not be cured of his skin conditions and he will require antibiotic and topical treatment for life. Although relatively rare, MRSA can get into the lungs and cause pneumonia (T413). Further, regular antibiotic treatment can, Dr Golledge said, deplete the gut flora and render the plaintiff susceptible to super infection by drug resistant organisms (T406). Dr Gabbay said that there was a risk that sepsis from his skin lesions may spread to the lungs and cause respiratory infections (report 12 May 2009, Exhibit 24 at p 2). I accept these opinions.
83 With respect to the plaintiff's ability to swallow, this was assessed by Adele Beadman (now Adele Jane), speech pathologist, in July 2007. His ability to swallow was poor and he was assessed at being of high risk of aspiration and choking (report July 2007 Exhibit 18 p 16). There is no evidence and I find that the plaintiff's ability to swallow will improve. However, he has, as I have already observed, been placed on a special diet to alleviate these risks.
84 There is no dispute that the plaintiff suffers from mild obstructive sleep apnoea (report of Dr Carol Huang 7 November 2006 Exhibit 20 p 140). The stark risk posed by sleep apnoea is that the plaintiff will stop breathing during his sleep. Dr de Chaneet in his report dated 4 April 2006 (Exhibit 20 p 35) referred to a report given to him by the plaintiff's mother that the plaintiff had, in the past, stopped breathing at night. I find this condition is being effectively controlled by the use of the VPAP machine.
85 The plaintiff has received excellent medical care not just from his mother and the various medical practitioners he has consulted but from other health care professionals such as speech pathologists, physiotherapists, nurses, carers, and occupational therapists.
86 The various risk factors facing the plaintiff have been treated as follows.
87 Of all the risk factors, the one which has proved most difficult to effectively treat is, as I have already mentioned, epilepsy. Initially, the plaintiff's epilepsy was treated by his paediatrician, Dr Lawrence Hu, with the anti-epilepsy drug, Epilim. In time, the Epilim dose was increased by Dr Hu. In 1999, Dr Hu referred the plaintiff to Dr Walsh who has continued to treat the plaintiff. It is clear from Dr Walsh's reports and from his evidence that the plaintiff has been treated with various anti-epileptic medications in changing dosages. Despite these efforts, control of the plaintiff's epilepsy remains as elusive as ever and he will remain on a regime of anti-epilepsy treatments for the rest of his life.
88 In relation to the plaintiff's alveolar hypoventilation, as I have already mentioned, in 2001 oxygen therapy was commenced and in late 2006, the plaintiff began using the VPAP machine. Fortunately, the plaintiff has taken well to VPAP therapy. The VPAP machine provides the plaintiff with both ventilation and oxygen. It monitors his rate of breathing and the amount of oxygen being delivered to him. Should either of these things drop below optimum level, say if there is a mask leak, the machine emits an alarm. The mask is intrusive but the plaintiff has got used to it and sleeps comfortably with it. In order for the machine to be effective, the mask must fit properly. There is a danger that the mask can be inadvertently moved during sleep through tossing and turning and its performance compromised. While the alarm will sound in the event that the machine's performance is compromised, Mrs James' evidence was that the sound of the alarm was "very light" (T111) and that sometimes the machine takes a while to sense a leak big enough to affect him (T111).
89 Dr de Chaneet described the plaintiff's respiratory health since he began VPAP treatment as "very stable" (report 21 May 2009 Exhibit 20 p 46). Dr Gabbay, the defendant's respiratory physician, having initially expressed doubts about the plaintiff's ability to tolerate the VPAP therapy, frankly admitted in his evidence that he had been wrong about this and agreed that VPAP therapy has resulted in "good control of his alveolar hypoventilation" (report 12 May 2009 Exhibit 24).
90 While it is true that the plaintiff's current treatment regime is keeping his respiratory function stable, I find he nevertheless remains at risk of developing pulmonary hypertension and right heart failure as a result of his alveolar hypoventilation. Dr de Cheneet in his report dated 21 May 2009 expressly recognised the risk. Dr Gabbay said in his report dated 12 May 2009 that even with control of the plaintiff's alveolar hypoventilation with VPAP therapy, he remains at risk of the development of pulmonary hypertension and right sided heart failure. Professor Gubbay said under cross-examination that while the plaintiff's respiratory condition was stable, it is nevertheless, as he put it, "fairly severe" (T578).
91 In relation to the plaintiff's risk of contracting respiratory tract infections, he will always be at risk of contracting such infections. Dr Gabbay's evidence was that as the plaintiff's respiratory disease progresses he will become susceptible to infections which may not currently affect him (T517). What effect any individual infection will have on the plaintiff is difficult to predict. A factor which is likely to impact on this is his level of care and the effectiveness of any antibiotic therapy prescribed to him. Plainly, proper care and effective drug treatment will reduce the risk posed by respiratory tract infections but the risk can never be eliminated.
92 With respect to the risk of respiratory tract infection caused by a spread from the plaintiff's skin infections, I am satisfied that the plaintiff is being well cared for in this regard as a result of the meticulous cleaning regime of the plaintiff's body and his home. In addition, the plaintiff is receiving and will continue to receive appropriate topical treatments and regular antibiotic treatment. These will alleviate, but not completely eliminate, the risk to the plaintiff's respiratory health posed by the spread of his skin infection to his lungs.
93 In relation to the plaintiff's difficulty swallowing, the aspiration controls which I have already mentioned along with measures to ensure that the plaintiff regularly coughs and keeps his airways and lungs clear will, in my opinion, reduce the risk posed by aspiration. Nevertheless, the risk cannot be eliminated. The danger posed to the plaintiff's health as a result of aspiration cannot be underestimated. Aspiration can, as I have already mentioned, result in choking or can trigger an episode of pneumonia. This risk has been further reduced by the plaintiff being watched whenever he eats and drinks. However, aspiration may occur during an epileptic seizure at a time when the plaintiff is not being watched or asleep. As Dr Gabbay put it in his report dated 14 April 2008 (Exhibit 20 p 67):
"there is the risk of a significant respiratory infection with aspiration of gastric or other content during an uncontrolled epileptic seizure. Such an infection could prove fatal but the risk that this will develop is not predictable."
94 In relation to the plaintiff's sleep apnoea, this condition seems well controlled by the VPAP machine. While the plaintiff's sleep apnoea remains a risk to the plaintiff, I do not think it poses a great risk to his life expectancy.
95 I will now outline the expert evidence estimating the plaintiff's life expectancy.
96 Dr Stephen Buckley, a rehabilitation specialist called by the plaintiff, estimated that the plaintiff could expect to live another 32.64 years. He said that he thought the plaintiff's expected pre-accident life expectancy was 64 years of age. He noted that the plaintiff was presently 27. Accordingly, he said, the plaintiff could have expected to live another 37 years pre-accident. He said that he would deduct from that 37 years, 2 per cent to take into account the plaintiff's epilepsy which amounts to a deduction of 0.74 years. After making that deduction, the plaintiff, he said, could expect to live for another 36.26 years. From this, Dr Buckley would deduct a further 10 per cent to take into account the plaintiff's respiratory problems. This amounts to another 3.62 years. This leaves, on Dr Buckley's estimate, the plaintiff with an expectation that he will live another 32.64 years.
97 While I acknowledge Dr Buckley's expertise in the area of rehabilitation medicine, he is not an expert with respect to either epilepsy or respiratory medicine. I do not accept his estimate of life expectancy. I think he has underestimated the effects of epilepsy and the plaintiff's respiratory problems.
98 Dr Walsh's evidence about life expectancy was, quite properly having regard to his specialty, restricted to the adverse effects of epilepsy. He deferred to the opinion of Dr Gabbay as to the influence the plaintiff's respiratory problems had on his life expectancy. Dr Walsh noted an article in the respected journal "Brain" published in 2004 which, based on a UK study, suggested that a person who develops epilepsy as a result of trauma at about the age of 15 years and who is still alive 12 years later could expect a reduction of normal lifespan of approximately 6 years. Dr Walsh, noted that the plaintiff's pre-accident lifespan was limited by his Down Syndrome to between 60 and 65 years. He thought it was reasonable to think that the plaintiff's epilepsy might shorten his life expectancy to approximately 55 to 60 years of age (report 22 May 2009 Exhibit 20 pp 186-187, T349-351).
99 Dr de Cheneet did not offer a precise opinion as to the plaintiff's life expectancy. In his report dated 14 November 2006 (Exhibit 20 p 39):
"With luck and good management, Michael's life expectancy may be many years however, unfortunately, it would only take one episode of intractable seizures with respiratory complications to end his life."
100 Dr David Burke, a rehabilitation physician called by the defendant, said in his initial report dated 22 April 2008 (Exhibit 26) that on the basis that the plaintiff's pre-accident life expectancy was approximately 50 years, this had been substantially reduced because of his accident related epilepsy and respiratory dysfunction. In his later report dated 25 May 2009, he said:
"The reduction in life expectation of patients due to severe epilepsy and pulmonary disease is outside my area of expertise."
101 He went on to say that, in his view, the opinions of specialist neurologists and respiratory physicians should carry the most weight because they are the areas which have the most impact in the assessment of the plaintiff's life expectancy. I accept this opinion.
102 Dr Gabbay has consistently expressed difficulty in estimating the reduction in the plaintiff's life expectancy due to all the plaintiff's respiratory problems including alveolar hypoventilation.
103 In his report dated 12 May 2009, at p 2, he identified the risks of respiratory tract infections, alveolar hypoventilation and sepsis from his skin infections spreading to the plaintiff's lungs as the most significant respiratory problems which potentially threaten his life. He concluded at p 3:
"As frequently stated, I am not in a position to comment on Mr James' life expectancy from his brain injury, epilepsy or Down Syndrome.
The risk from a respiratory cause of death is significant, but his life expectancy is difficult to estimate. I believe that taking into account the potential respiratory problems, a reasonable estimate of Mr James' median life expectancy would be in the order of a further 18-23 years of life."
In other words there is a 50 per cent chance the plaintiff will live shorter than this period and a 50 per cent chance he will live longer (T535).
104 Dr Gabbay provided a further report to the defendant's solicitors dated 3 June 2009 in which he was somewhat less optimistic of the plaintiff's life expectancy expressing the median life expectancy of the plaintiff to be an additional 15 to 20 years. The change in his opinion was caused by Dr Walsh's opinion in his report dated 22 May 2009 which confirmed that the plaintiff's epilepsy was unlikely to ever be controlled and his perusal of the Sir Charles Gardiner Hospital file relating to the plaintiff's admission in 2006. In that file Dr Gabbay noted a significantly elevated CO² level in a test done on the plaintiff on or about 31 October 2006 which lead him to believe that the plaintiff's respiratory function was worse at that time than he had first thought. However, in cross-examination when referred to other CO² readings he accepted that the elevated reading could have been a mistake and he returned to the estimate of median life expectancy, having regard to his respiratory function, as being 18 and 23 years (T545). He said that in medical terms the difference between 15-20 years and 18-23 years was "a pretty minor change" (T540).
105 Dr Gabbay agreed with the proposition put to him in cross-examination the longer that a person survives after a condition has developed the greater is the chance that he will live beyond the median expectation (T546).
106 Dr Michael McComish, consultant physician, did not give evidence at trial but his report dated 17 March 2009 (Exhibit 20 p 155) was by consent tendered in evidence pursuant to s 79C of the Evidence Act. With respect to the plaintiff's life expectancy, in his opinion, the plaintiff's pre-accident life expectancy was 64 years. He identified the main risk factors which will threaten his life expectancy as alveolar hypoventilation, epilepsy and "his overall neurological impairment". In his report, he said that a 10 per cent reduction to something like 58 years for his respiratory condition would be a reasonable estimate. He said that he agreed with an earlier opinion of Dr Walsh that only a small reduction in his life expectancy should be made for epilepsy. He said that the plaintiff's neurological impairments reduce further "but slightly" his life expectancy. Dr McComish said that "to ensure the best outcome [with respect to life expectancy] Michael James will require permanent care of the sort that he has obtained from his parents and others since the accident." He went on to say "there is a clear correlation between the level of care and life expectancy ... but I doubt there would be any gain from increasing the level of care from that which he is receiving at present...".
107 Dr Ong, who was the plaintiff's general practitioner and who treated him for almost 10 years said in his report dated 13 November 2006 Exhibit 20 p 168 that the plaintiff's life expectancy has been considerably shortened, but he was unable to give a figure as to the plaintiff's post-accident life expectancy.
108 Professor Gubbay, a neurologist, was called by the defendant. Professor Gubbay has provided five reports dated 22 August 2000, 16 August 2002, 2 December 2004, 7 April 2009 and 12 May 2009. These reports are all contained in Exhibit 26. Professor Gubbay saw the plaintiff on 22 August 2000 and on 2 December 2004. Professor Gubbay has not seen the plaintiff since then and is not his treating neurologist.
109 In his report dated 2 December 2004, he estimated that the plaintiff's epilepsy and respiratory failure "might mean that his life expectancy might be as short as a further 5 to 15 years. This figure could well be modifiable by a respiratory physician who would have some estimate of prognosis". This estimate was given on the erroneous assumption that the plaintiff's pre-accident life expectancy was 50 years.
110 In his report dated 7 April 2009 Professor Gubbay said:
"Unlike Dr Buckley I believe that his severe seizures for which he had been taking multiple anticonvulsant drugs are likely to cause a much more significant reduction of life expectancy then 2 years. Evenmoreso (sic), I believe that his respiratory insufficiency is likely to be the most important of all his life limiting factors. It is not really pertinent to subtract the reduced life expectancy from epilepsy together with the reduced life expectancy from respiratory insufficiency from his already reduced life expectancy from Down Syndrome. Rather it is that we should consider his life expectancy as of now to be reduced by a combination of his epilepsy and his non-accident related respiratory insufficiency. This then needs to be compared with a background life expectancy which Professor Bittles believes is possibly as long as 65 years.
Like Dr Buckley I seek clarification in regard to the reduced life expectancy resulting from respiratory failure.
Michael James is now aged 26 years. When taking all these matters into consideration I think it is likely that there will be a reduction of his life expectancy by 15 to 20 years ie that there would be a 50 per cent chance of his survival to the age of 45 or 50 years.
It is hardly scientific to quote accurate figures of life expectancies for the two factors which are operative in this regard namely severe epilepsy and respiratory insufficiency then subtract the sum from the life expectancy that might have been applicable before the motor accident. One can only provide a general estimate according to one's experience in his or her own area of expertise.
Overall my opinion in this matter has only been modified by the rather higher then expected life expectancy of uncomplicated Down Syndrome as expanded by Professor Bittles. However life expectancy is likely to be much shorter as described above when taking into consideration his severe epilepsy and respiratory insufficiency."
111 The effect of Professor Gubbay's opinion on life expectancy was that, he like Dr Gabbay, thought his median life expectancy was between 18 and 23 years. Although Dr Gabbay's estimate was with regard to the plaintiff's respiratory problems only.
112 In evidence-in-chief, Professor Gubbay explained the first paragraph of this extract. He said that risk factors have a negative effect on each other so that their combined effect is greater than a simple accumulation of their negative effect. He described this effect as geometric rather than arithmetic (T573-4). Professor Gubbay's expertise is the field of epilepsy. He has, and claimed, no expertise in respiratory medicine. It was evident in cross-examination that Professor Gubbay, while having some appreciation of the plaintiff's respiratory condition, did not have the detailed knowledge either Dr Gabbay or Dr de Chaneet. Further although he assumed that the plaintiff was receiving a modified diet, exercise and physiotherapy he had not been made aware of these developments. Nor was he aware that the plaintiff had been successfully using the VPAP machine. Finally he had not seen the plaintiff since late 2004.
113 Mr Lampropoulos submitted that epilepsy and alveolar hypoventilation, if it develops into pulmonary hypertension, are the main threats to the plaintiff's life expectancy.
114 As to the appropriate method of assessing the plaintiff's life expectancy, Mr Lampropoulos submitted that I should not look at each risk factor in isolation, assess its reduction in life expectancy and then add those reductions. Mr Lampropoulos submitted that to do so would be, as he put it, to double or triple discount the same risk factor because the risk factors overlap.
115 However, Mr Lampropoulos submitted that I should not, as Professor Gubbay suggested, multiply the effects of the risk factors. On this point, he submitted that a possible geometric effect was not put to other medical witnesses and Professor Gubbay was mostly in the dark about the precise nature of the plaintiff's respiratory condition and had not seen the plaintiff for a long time.
116 Mr Lampropoulos submitted that I should take what he described as "an holistic approach" rather than focus on statistical and medical judgments alone.
117 With respect to alveolar hypoventilation, Mr Lampropoulos pointed to the unchallenged evidence that the plaintiff had not yet developed pulmonary hypertension and there was no evidence of heart problems. Mr Lampropoulos submitted that there were positive developments in respect of this condition in recent years. In 2001 oxygen therapy was commenced. In 2006, VPAP therapy commenced which the plaintiff tolerates well. In addition to these measures, Mr Lampropoulos pointed to the exercise and physiotherapy regimes and aspiration controls which have been put in place for the plaintiff's benefit, and Dr de Chaneet's opinion that the plaintiff's respiratory health had been very stable since the introduction of VPAP.
118 Mr Lampropoulos drew my attention to Dr Gabbay's evidence that the risk of the plaintiff developing pulmonary hypertension was in the order of 30 per cent in the next 10 years. He submitted that, in effect, this meant that it was not probable that the plaintiff would develop pulmonary hypertension in that time.
119 With respect to epilepsy, Mr Lampropoulos submitted that there should only be a modest reduction in relation to its possible effects upon the plaintiff. Mr Lampropoulos submitted that the greatest risk with respect to epilepsy was aspiration as a result of an epileptic fit. Mr Lampropoulos submitted that quality care for the plaintiff would minimise the risk that aspiration poses to the plaintiff.
120 Mr Lampropoulos referred me to the evidence of Drs Walsh, Buckley and McCommish whom, he submitted, suggested that epilepsy has only a small negative effect on the plaintiff's life expectancy.
121 Mr Lampropoulos recognised that Professor Gubbay thought that the effect that epilepsy had a greater effect reducing the plaintiff's life expectancy however, he submitted that I should not accept Professor Gubbay's opinion because he had not seen the plaintiff for five years and did not have sufficient knowledge of the plaintiff's overall health.
122 Mr Lampropoulos submitted that although Dr Gabbay believed that the plaintiff's median further life expectancy was between 18 and 23 years, it was more likely that the plaintiff would have a better life expectancy than this median range, having regard to the plaintiff's stable respiratory health and the high level of care he could expect in the future. Mr Lampropoulos submitted that the plaintiff had survived 12 years since the accident, so he had a greater chance of living beyond the median expectancy. Mr Lampropoulos noted the opinions of Dr Buckley and McCommish as to the plaintiff's life expectancy were more optimistic then Dr Gabbay.
123 Having regard to all of these things, Mr Lampropoulos submitted that I should assess damages on the basis of a further life expectancy of 29 years.
124 Mr Clyne submitted that I should accept Dr Gabbay's evidence which he said was to the effect that leaving aside epilepsy, the plaintiff's life expectancy having regard to alveolar hypoventilation and its consequences alone was between 18 and 23 years.
125 Mr Clyne submitted that there was no evidence to the contrary. Mr Clyne referred to Dr de Chaneet's evidence in particular and noted that he did not provide a contrary opinion.
126 Mr Clyne placed particular emphasis upon Dr Gabbay's report dated 14 May 2009 where he identified the significant respiratory risks faced by the plaintiff.
127 Mr Clyne submitted that the starting point in terms of life expectancy is 18 to 23 years as proffered by Dr Gabbay having regard to his alveolar hypoventilation only. Mr Clyne submitted that other risks, most notably epilepsy, but also sleep apnoea, recurrent respiratory infections and MRSA further reduce the plaintiff's life expectancy.
128 Mr Clyne submitted that the plaintiff's epilepsy was serious and referred me to the evidence of Dr Peter Walsh and in particular his report dated 22 May 2009 and to the evidence of Professor Gubbay.
129 Mr Clyne submitted that having regard to the starting point set by Dr Gabbay based only on the plaintiff's alveolar hypoventilation and taking into account all the other risk factors, the plaintiff's likely life expectancy was a further 15 to 18 years. Mr Clyne said that the defendant's position was, erring on the side of conservatism, that the plaintiff was likely to live another 18 years. Mr Clyne submitted that I should assess the plaintiff's life expectancy on the basis of Professor Gubbay's evidence that the various risk factors have a geometric effect.
130 Mr Clyne submitted that all calculations of future loss should be subject to a reduction of 10 per cent to allow for negative contingencies. Mr Clyne submitted that this was required to recognise the risk that each and everyone of the conditions which threaten the plaintiff's life could cause his demise at any time and that from the age of 40, by virtue of his Down Syndrome, he will develop Alzheimer's Disease. Mr Clyne submitted that if I come to the view that the plaintiff has a longer life expectancy than 18 years, a higher figure for negative contingencies should apply.
131 It is impossible to predict with mathematical or scientific precision the plaintiff's life expectancy. I must approach the task of predicting the plaintiff's life expectancy having regard to the principles laid down by the High Court of Australia in Malec and JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. In that case, Deane, Gaudron and McHugh JJ said at 642-3:
"A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater then it not having occurred, the occurrence of the event is treated as certain: if the probability of it having occurred is less then it not having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9% - or very low - 0.1 %. But unless the chance is so low as to be regarded as speculative - say less then 1% - or so high as to be practically certain - say over 99% - the court will take that chance into account in assessing the damages. Where proof is necessarily unobtainable it would be unfair to treat as certain the prediction which has a 51% probability of occurring, but to ignore altogether a prediction which has a 49% probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjust its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded."
132 Brennan and Dawson JJ agreed with the judgment of Deane, Gaudron and McHugh JJ and added at 640:
"...we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation."
133 My task is to estimate the plaintiff's life expectancy, already reduced by Down Syndrome, having regard to the various accident caused risk factors which confront the plaintiff along with the measures which have been taken and which will be taken, as far as I can predict, to deal with these factors and his overall care into the future. I must, approach this task paying careful attention to the expert evidence. However, I am not bound to accept one or other opinion of life expectancy. In Thurston v Todd [1966] 1 NSWR 321 each of the presiding appeal judges, Wallis P, Jacobs and Holmes JJA, made the point that the learned trial judge, in that case, was not bound to select one of a number of conflicting opinions as to the plaintiff's life expectancy. It was said that having regard to the imprecise and somewhat speculative nature of predicting life expectancy, it was open to the trial judge to make his own judgment on the matter, having regard to all of the circumstances including the expert medical evidence.
134 In the present case, I have no doubt that each expert who attempted the task made an honest estimate of the plaintiff's life expectancy. However, the plaintiff is afflicted with a number of conditions and no one expert had sufficient expertise in all of these conditions and as to how they might interact with each other to be able to provide a fully informed estimate of the plaintiff's life expectancy. Further, as I have already observed, a number of the experts acknowledged that their estimate was imprecise. I have had the advantage of hearing all of the evidence in this case to arrive at my own conclusion.
135 Once the plaintiff's probable life expectancy has been decided, I must not reduce allowances for future care and expenses for the vicissitudes of life: Sharman v Evans (supra) per Gibbs and Stephen JJ 587. This is because the chances of the plaintiff living longer or shorter will have already been taken into account by me in arriving at the plaintiff's probable life expectancy.
Findings and analysis on the question of life expectancy
136 I have already made a finding that, prior to the accident, the plaintiff could have expected to live to the age of 65 years.
137 It is not disputed and I find that the plaintiff suffers from a number of conditions caused by the head injuries he sustained in the accident. All of these conditions could prematurely end his life. These conditions are:
138 It is not disputed and I find that the most serious threats to the plaintiff's life expectancy are epilepsy and alveolar hypoventilation.
139 In relation to epilepsy, I find that the specific risks to the plaintiff are:
140 I find that the first two risks caused by epilepsy can be guarded against, to significantly, but not completely, by vigilant and properly trained care of the kind the plaintiff currently experiences. It is possible that a carer may prevent or be in a position to reduce the effects of a fall or seek prompt assistance in the event that a fall occurs. If a plaintiff had an episode of sudden aspiration during a fit the carer would, I expect, notice it and be able to deal with any choking or be able to call for help. I accept that the effects of chronic aspiration can be to some extent alleviated by cutting up his food into smaller pieces and lubricating it and by thickening his drinks.
141 Nothing, it seems, can be done to reduce the risk of Sudden Unexpected Death in Epilepsy.
142 Several doctors offered opinions as to the effect that epilepsy has on the plaintiff's life expectancy but I will concentrate on the opinions of the specialists in this field, Dr Walsh and Professor Gubbay.
143 Dr Walsh's opinion was that the plaintiff's epilepsy might shorten his life by approximately 5 years.
144 Professor Gubbay, in his initial report dated 22 August 2000 at p 7 (Exhibit 26) said "I feel that his life span could be reduced by 10 to 15 years as a result of his epilepsy". He did not repeat this opinion in later reports or in his evidence. Mr Clyne did not rely upon it in his closing submissions. In later reports Professor Gubbay estimated the plaintiff's reduction of life expectancy in the context of both epilepsy and respiratory failure rather than epilepsy alone.
145 I place more reliance upon Dr Walsh's opinion than Professor Gubbay's on the effect that epilepsy will have on the plaintiff's life expectancy. While I recognise and respect Professor Gubbay's long experience and expertise, Dr Walsh is also experienced and no attack was made on his expertise. Dr Walsh has in my opinion, a very good appreciation of the plaintiff's epilepsy and overall condition because he has been the plaintiff's treating neurologist and has seen him regularly since 1999. Professor Gubbay had seen the plaintiff only twice, the last time being 5 years ago.
146 As important as epilepsy is as a factor which reduces the plaintiff's life expectancy, both Dr Walsh and Professor Gubbay agreed that the major factor in determining the plaintiff's life expectancy is his impaired respiratory function. I accept this and it is to the issue of the plaintiff's respiratory function, most particularly his alveolar hypoventilation that I now turn.
147 The plaintiff is now permanently afflicted by alveolar hypoventilation. The delivery of supplementary oxygen which he currently receives, is vital to his continued survival. There is no dispute that the plaintiff has taken well to the introduction of the VPAP machine. It is not disputed and I find that the plaintiff's respiratory health has, since the plaintiff began VPAP treatment in 2006 been stable and that the VPAP machine has provided good control of his alveolar hypoventilation. Of course the VPAP machine is a therapy and there is no cure to the underlying condition. As Dr Gabbay put it, and I accept, the plaintiff's alveolar hypoventilation remains and will always be "fairly severe". Both Dr de Chaneet and Dr Gabbay have recognised the necessity to maintain VPAP therapy into the future. Despite the success of VPAP therapy, both Dr de Chaneet and Dr Gabbay agree and I accept that the plaintiff nevertheless remains at risk of developing pulmonary hypertension. If he does develop severe pulmonary hypertension, I accept Dr Gabbay's opinion that death from heart failure is likely within about 5 years. The only evidence about drug therapies for this condition is that there is, at the moment, insufficient data to make any conclusion as to their effectiveness. I cannot speculate about the impact any drug therapy may have on the plaintiff in the future.
148 At the present time, there is no evidence, that the plaintiff's cardiac health has been compromised. Particularly, there is no sign that pulmonary hypertension has developed in the plaintiff.
149 Prior to the introduction of VPAP therapy, Dr Gabbay's opinion was that the plaintiff there was a 60 per cent risk over 10 years that the plaintiff would develop pulmonary hypertension and consequent right heart failure. However, as a result of VPAP therapy, that risk has, in Dr Gabbay's view reduced considerably to 30 per cent over 10 years. The effect of this opinion is that it is not probable that the plaintiff will develop pulmonary hypertension in the next 10 years. I accept this. He did not estimate the chances beyond 10 years.
150 Dr Gabbay's ultimate position at trial was that the plaintiff's median life expectancy taking into account a respiratory cause of death would be in the order of a further 18 to 23 years of life.
151 There are two things which must be noted about Dr Gabbay's opinion as to the plaintiff's life expectancy. The first is that his opinion did not take into account the effect that epilepsy has on the plaintiff's life expectancy. Second, Dr Gabbay regarded his opinion on life expectancy as no more than a "educated estimate". Given Dr Gabbay's experience, expertise and his knowledge of the plaintiff, his estimate of the plaintiff's life expectancy must be respected. Having said this, Dr Gabbay was at pains to emphasise that it was by no means exact. He made the point, which I accept, that in medical terms the difference between estimates of 15 to 20 years and 18 to 23 years was "pretty minor". So while I have taken Dr Gabbay's estimate into account when coming to my own conclusion on the question of life expectancy, I have done so having regard to both these points.
152 Professor Gubbay thought that the plaintiff's life expectancy was between 18 and 23 years having regard to both his epilepsy and respiratory health. Professor Gubbay in coming to this conclusion, did not have a precise or up-to-date appreciation of the plaintiff's respiratory condition. Further, he had no expertise in respiratory medicine. In these circumstances, I have not accorded much weight to Professor Gubbay's opinion on life expectancy.
153 With respect to the plaintiff's susceptibility to respiratory tract infection, his difficulty swallowing and sleep apnoea I refer to the findings made between [82] and [84] of these reasons.
154 Dr Buckley expressed the opinion in his report dated 17 December 2008 (Exhibit 20 p 24) that the plaintiff would probably live in the order of another 23 to 29 years having regard to the plaintiff's epilepsy and respiratory condition. However, Dr Buckley said in his report that he did not know what the risk was of the plaintiff developing pulmonary hypertension or heart failure. In cross-examination (T335-6) he deferred to the respiratory physicians and in particular Dr Gabbay with respect to the means of death in patients with respiratory disease.
155 Dr McComish in his report dated 17 March 2009 thought that the plaintiff having regard to his respiratory condition would live to be 58 years old, that is, the plaintiff would live another 31 years. Dr McComish said he would make further reductions for the plaintiff's sleep apnoea, epilepsy and neurological and cognitive impairment. The precise extent to which these conditions further reduced the plaintiff's life expectancy was not detailed by Dr McComish, although, the impression one gets from reading his report would not have contributed a great deal to any further reduction of the plaintiff's estimated life expectancy. Dr McComish did not in his report deal with the plaintiff's susceptibility to respiratory tract infection.
156 With respect to the expert opinion on the plaintiff's life expectancy I found the opinions of Dr Walsh and Dr Gabbay the most helpful. In my view Dr Walsh's expertise and years of experience of the plaintiff has provided him with an excellent appreciation of the plaintiff's epilepsy. Dr Gabbay while not the plaintiff's treating respiratory physician, was sufficiently familiar with the plaintiff to provide an informed opinion. There was no doubting his expertise. The only qualification to his opinion was the imprecise nature of his estimate.
157 The plaintiff has, up-to-date, been resilient. He has survived two serious bouts of pneumonia, numerous falls including a serious fall which broke his neck and he appears from the DVD that I saw physically and psychologically robust. It is now more than 12 years since the accident, which, as Dr Gabbay agreed, was a favourable prognostic sign.
158 I believe that a crucial reason for the plaintiff's continued survival is the very high quality of care which has been provided to him by his mother, his doctors, other health professionals and his carers. The plaintiff's mother has been instrumental in the high level of care which has been provided to her son. Not only has she physically provided a great deal of care but her organisational skills have been invaluable in maintaining the high quality of care that the plaintiff requires.
159 In my view, accepting that the plaintiff's mother will not be the plaintiff's primary caregiver in the future, it is vital that his care regime is in the years to come as effective as it has been in the past. I will later in these reasons deal with the plaintiff's future care. It is sufficient for present purposes that I am confident that the plaintiff's future care will not in any way detract from his life expectancy.
160 I have also been impressed by the quality of the medical care that the plaintiff has received. He is regularly monitored by his general practitioner, Dr Walsh, Dr de Chaneet, Dr Golledge and other health professionals.
161 All the plaintiff's conditions have been constantly monitored, including his vital signs. Specific risks have been responded to in what I believe to be an appropriate and effective ways. His risk of injury from epilepsy has been alleviated by constant supervision, his alveolar hypoventilation and general respiratory health is stable and controlled because of the careful oxygen therapy that has been administered to him including, most significantly, the VPAP machine. This machine has also been advantageous in minimising the risk caused by the plaintiff's sleep apnoea. The risk of aspiration has been managed by a regime of softened food and thickened liquids and the plaintiff's skin infections have been well managed by unstinting hygiene, topical treatments and, where necessary, antibiotics. The plaintiff is encouraged to regularly cough and keep his chest clear. Exercises and physiotherapy have also assisted his respiratory health.
162 Having said all of this, despite the best of care and the measures which have been taken to specifically address the various risk factors which face the plaintiff, those risk factors remain and will not be either cured or eliminated. The plaintiff has had some close calls already. Here I particularly refer to the serious episode illness in 2001, and the fall which broke his neck in 2007. Aspiration is a constant risk which can occur suddenly and which can in short time cause potentially fatal choking or a life threatening respiratory infection.
163 Despite the success of the VPAP machine, the plaintiff will always suffer from alveolar hypoventilation and in time there is a significant risk that he will develop pulmonary hypertension. However based on the opinion of Dr Gabbay, I do not think that this condition will manifest itself over the next 10 years. If he develops this condition, it is likely that he will die from heart failure within about 5 years of it being diagnosed. While one hopes that there will be drug therapies which may prevent right ventricular damage, there is no evidence which allows me to come to this conclusion.
164 Mr Lampropoulos submitted that while it was possible to identify the risk factors separately there was overlap between them and it would be an error to look at each condition in isolation and then accumulate the reduction in life expectancy because that could result in, as he put it in his written submissions "double and triple discounting for the same statistical risk". As I said earlier in these reasons, there is some overlap between the risk factors. As a result, I accept Mr Lampropoulos' submission that it is not simply a matter of looking at each risk factor in isolation and accumulating the reduction in life expectancy caused by each factor.
165 Mr Clyne urged me to accept the evidence of Professor Gubbay that the risk factors have a negative effect on each other and so their combined effect is greater than a simple accumulation of their negative effect. This was described by Professor Gubbay as a geometric rather than an arithmetic effect. Professor Gubbay was the only witness to express this view. Professor Gubbay's position was that where there are multiple negative factors "the disorders on the one hand probably have a negative effect on the disorders on the other hand" and cause a geometric rather than an arithmetic effect. So for example, if there were two risk factors, one which impacted by 2 years and another which impacted by 4 years, the total negative effect, according to Professor Gubbay would be more than 6 years to take into account the negative effect one factor has on the other.
166 I am not convinced that this is the correct way to approach the various risk factors. I have some concerns about this approach which in the end have led me to reject it. First, it was not an approach put to other expert witnesses for comment. Second, it fails to take into account any factors favourable to the plaintiff. Third, I am unaware of the statistical or medical basis upon which Professor Gubbay draws his opinion.
167 Mr Clyne submitted that some allowance, as a negative factor should be given to the risk that the plaintiff would have, because of his Down Syndrome, prematurely developed Alzheimer's Disease after the age of 40 years and would have, in any event, required residential care. While I accept that because of the plaintiff's Down Syndrome he will at some point develop Alzheimer's Disease, the evidence before me does not establish when that would occur and at what point in time he would have required, if at all, residential care. Little attention was paid to this issue during the trial. Dr McComish was the only expert doctor who gave evidence directly on the point raised by Mr Clyne. He said in the final paragraph of his report dated 17 March 2009:
"I do not think that Michael would have required paid care in future because of his Down Syndrome alone. His risks as the years went by would have been those premature vascular disease and dementia. In other people these conditions characteristically appear in the seventh and eighth decades. They do so earlier in those with Down Syndrome and in either case they might result in the necessity for institutional care. I do not think these matters need to be taken into consideration in Michael's case."
168 Professor Bittles' evidence was that although those afflicted with Down Syndrome will, if they live long enough, develop Alzheimer's Disease exactly when they will develop this disease is difficult to assess. In the end, having regard to all of the evidence and in particular the evidence of Dr McComish and Professor Bittles, I have accorded little weight to the possibility that the plaintiff would have, in any event, required care for Alzheimer's Disease.
169 I now turn to Mr Clyne's submission about negative contingencies. It is true that the plaintiff might die unexpectedly early as a result of his accident related conditions. But, in my view, it is equally true that the plaintiff may survive longer than I expect. These are matters I have taken into account when assessing the plaintiff's life expectancy. In light of this, I do not think it would be appropriate to make any extra allowance for future negative contingencies.
170 As to the submission that Dr Gabbay's opinion of the plaintiff's life expectancy of 18 to 23 years is a starting point from which, other risk factors should be deducted, I do not accept that Dr Gabbay's opinion should be considered a starting point. Dr Gabbay regarded his estimate as being no more precise than a best estimate rather than something which could be regarded as a starting point.
171 In my opinion the plaintiff's submissions that the plaintiff will live another 29 or even 26 years are, sadly, too optimistic. I do not think either estimate give sufficient allowance for the risk factors facing the plaintiff even taking into account the high quality of the plaintiff's future care.
172 Having taken into account all of the risk factors, what has been done and what will be done in the future for the plaintiff to deal with those factors, the opinions of the experts, being mindful of the possibility of unexpected early death and that the plaintiff may survive longer than I expect, being well aware of the imprecise and difficult nature of the task I must perform, I have decided that damages should be assessed on the basis that the plaintiff will live to the age of 50 years that is another 22 years calculated from his next birthday.
173 It is no exaggeration to say that the plaintiff's life depends upon the quality of the care which is provided to him in the future.
174 There is no dispute, and I find, that the plaintiff requires 24 hour care. In the future, that care will be provided by a private agency. At the present time, it is proposed that the plaintiff's care will be provided by CareNet.
175 Ms Jan Bishop an experienced rehabilitation and disability consultant was retained by the plaintiff to assess the plaintiff's future care needs. Her recommendations as to the structure of the plaintiff's future care were not disputed and were relied upon by each party. In her opinion the plaintiff needs care from a case manager, a registered nurse, a multi-skilled carer and a carer. I will describe each of their roles and then, save for carers, make findings about their hours which is the issue in dispute between the parties.
176 In Ms Bishop's report dated 13 October 2008 (Exhibit 15 pp 69-70) she described the case manager's role as follows:
"Case managers ensure that clients receive the services, supports and resources that have been arranged in order to meet the client goals. They advocate for the client and liaise with all parties to assist the client to access services. The role is to promote the development/extension of resources where service gaps are identified.
The case manager is required to assess and re-assess in collaboration with family: medical practitioners: therapists and agencies ... the ongoing needs of a client in a holistic way, covering all areas:
177 Ms Bishop recommended that the case manager would be required to work for 8 hours per month for the first three months and then 4 hours per month thereafter (Exhibit 15 p 71 and in her report dated 27 May 2009, Exhibit 21).
178 I accept this recommendation from Ms Bishop as being a reasonable assessment of the number of hours for the case manager would need to work. I note that the plaintiff's claim is for 8 hours per month but I think this is based on a misreading of Ms Bishop's reports which consistently allow for 8 hours per month for the first three months and then 4 hours per month thereafter.
179 Ms Bishop recommended that a registered nurse be retained to assess the plaintiff's oxygen levels associated with his respiratory disorder as well as to deal with continence management, infection issues associated with his MRSA and to provide management of pressure areas on the plaintiff's skin resulting from his limited mobility.
180 In her report dated 13 October 2008 she recommended that a registered nurse should be retained for 10 hours per week. However, in her evidence and in her report dated 27 May 2009 Ms Bishop recommended that the nurse be retained for 14 hours per week. In her report of 27 May 2009 she said:
"... these hours I have increased as the client has large residuals of urine in the bladder and the carers from Nursing Australia are not permitted to catheterise (insert a catheter into the bladder). It is not appropriate for the family to perform this task on their son. A nurse is also required to assess the girth measurement, fluid input/output and organise appropriate action."
181 In large part, the increase in hours from 10 hours per week to 14 hours per week was due to Ms Bishop's understanding that the plaintiff would have to be catheterised. This in fact was a misunderstanding because, the plaintiff's consulting urologist, Dr Yin, is of the view that catheterisation is not warranted. Mr Clyne put this to Ms Bishop in cross-examination but she nevertheless maintained that the extra hours were warranted in order to monitor his urinary output, perform a girth measurement around his bladder, assess his oxygen levels, administer medication and check his swallowing.
182 Ms Bishop's opinion that 14 hours of nursing assistance was required was supported by Mr Darryl Kelly, a nursing consultant who specialised in the area of continence management who was called on behalf of the plaintiff. He recommended in his report dated 2 June 2009 (Exhibit 19) and in his evidence (T247) that a registered nurse should be retained for 14 hours per week. Originally he had recommended 6 hours per week. He said the changes were justified in order to deal with what he described as changes in the plaintiff's urinary and faecal incontinence, effects of his epileptic fits and in his ability to swallow. He also contemplated that the registered nurse would perform some case management functions. He did not think it was necessary that the Registrar and the registered nurse attend on the plaintiff every day.
183 Dr Burke, the defendant's consultant rehabilitation expert originally through a nurse was required for 2 hours two or three times per week but in evidence agreed with Ms Bishop's assessment that a registered nurse was required for 14 hours per week (T492), although he agreed he was not aware of why Ms Bishop had changed her recommendation from 10 to 14 hours per week.
184 In my opinion, the main reason why Ms Bishop increased her recommendation from 10 hours to 14 hours was her mistaken view that the plaintiff required catheterisation. While I appreciate that Mr Kelly thought the 14 hours per week was required, he thought that the registered nurse would, also perform some case management duties. This will not be necessary in light of the appointment of a case manager.
185 The defendant's position is that a registered nurse is required for 6 hours per week.
186 I find that the presence of a registered nurse for 10 hours per week will provide the plaintiff with proper and reasonable nursing care. I note Mr Kelly's observation that a registered nurse was not required to attend upon the plaintiff every day. In my view, a registered nurse should attend four times during the week and once over a weekend.
187 Ms Bishop recommended, (a recommendation Dr Burke supported) and it is the plaintiff's case, that a multi-skilled carer be retained to work 4 hours per day 7 days per week. The defendant's case is that 3 hours per day is reasonable. The duties of the multi-skilled carer are to cook, clean, wash, iron, shop and assist the plaintiff's other carers in showering the plaintiff and taking him on outings.
188 Without hesitation, I accept that the domestic assistance of a multi-skilled carer is required on a daily basis for the plaintiff. While the plaintiff does not have to be watched every minute of the day, he cannot be left alone for any significant period of time and it is too much to ask his carer to also perform domestic duties. The domestic duties are reasonably time consuming. The plaintiff's laundry requirements need to be attended to daily and the rigorous cleaning regime required as a result of the plaintiff's MRSA mean that domestic cleaning must also be done daily. Currently the plaintiff receives 22 hours per week domestic care from Disability Services Commission.
189 In my opinion, a reasonable allowance for domestic assistance is 4 hours per day 7 days per week.
190 The duties of the plaintiff's carer are many. The carers will amongst other things get the plaintiff up in the morning, shower him, supervise his feeding, monitor and deal with any problems relating to his respiratory function, epilepsy and continence, supervise his exercise, accompany him out of the house, put him to bed and ensure that all is well at night. The issue to be decided is what level of care the plaintiff should receive at night. Should the plaintiff receive active as opposed to passive care at night?
191 The concept of passive care requires some explanation. Ms Bishop recommended that the plaintiff's 24 hour care be divided into two shifts. One shift to begin at 7.00 am and end at 7.00 pm and the next shift to begin at 7.00 pm and continue to 7.00 am. With respect to this second shift, Ms Suzan Bridge from CareNet said that in order for it to be categorised as passive there must be a sleep component for the carer between the hours of 11.00 pm and 7.00 am with only two contact periods with the plaintiff between those times. Each of those contact periods can be up to 30 minutes (T229). If there are more than two contact periods or the contact periods exceed more than one hour, the shift becomes an active shift. A shift which has a component of passive care costs less than an active shift.
192 The evidence of the plaintiff's mother, who has been his night time carer, was that, on a good day, she got up at least seven times per night to attend to the plaintiff (T111-112). In examination-in-chief when asked what level of care she was providing at night she replied:
"... I monitor his oxygen, I make sure that his [continence] pad is dry. I make sure that his mask has not come off. Even though the VPAP machine has an alarm, it is a very light alarm so you have to be mindful of the different noises. Sometimes it doesn't alarm when there is a leak: it is just very noisy. It takes a while for the machine to sense ... a big enough leak that is going to affect him. So I monitor his oxygen levels. If he has had any recordings of high temperatures or anything during the day, I will check that, make sure he is cool enough. I make sure that he is not stuck in the bed-rails if he has had seizures. I make sure that he is covered. I reposition him. That comes with a lot of stopping the mask making noise as well."
193 In cross-examination, Mr Clyne drew Mrs James' attention to the schedule of gratuitous services filed on behalf of the plaintiff in these proceedings in which it was asserted:
"Mrs James checks on the plaintiff, on average three to four times each night, approximately an hour each night. When the plaintiff has a grand-mal seizure at night, his pyjamas and bed linen need to be changed. This takes at least an extra hour."
194 Mrs James said in cross-examination that the average number of times that she got up at night to attend to her son as expressed in the schedule of gratuitous services was an underestimate.
195 The plaintiff tendered in evidence contemporaneous records that she made of her attendances upon the plaintiff at night between 4 and 10 October 2008 (Exhibit 5) and 21 and 27 May 2009 (Exhibit 3). The plaintiff's mother attended upon the plaintiff at night more frequently in the period in May 2009 than in the period in October 2008. Nevertheless, it can be fairly said that Mrs James was getting up to attend to her son more frequently than twice per night.
196 I found Mrs James an honest witness. I did not think that she was prone to constant exaggeration or that she gave her evidence in such a way that it was tailored to maximise her son's claim. Nor do I think that she has acted in an overly protective way towards her son. While I cannot make any precise finding about how many times Mrs James gets up each night to attend to the needs of her son, I find that it is more than twice per night and more often than not in excess of that number.
197 When one looks at the reasons that Mrs James gave for attending upon her son, it is my view that she does so reasonably. I accept that it is vital to the plaintiff to ensure that his oxygen levels do not desaturate. The incontinence brought on by his frequent epileptic fits cannot be left to the morning, particularly when he has had a grand-mal fit.
198 As I observed earlier in these reasons, in my opinion, an important reason for the plaintiff's survival up-to-date has been the quality of the care provided to him by his mother. In my opinion it is important for his continued survival that the standard of care previously provided to the plaintiff by his mother is provided to him in the future.
199 In Ms Bishop's report of 27 May 2009 (Exhibit 21) she proposed that during the 8 hour sleepover a monitor with sound alarms and TV screen could be connected to the carer's room. In her evidence she said that a Vigil-Aide convulsion epilepsy alarm could be installed beneath the sheet in the plaintiff's bed and that an alarm could also be connected to a television screen in the carer's room. As to these options she said at T270:
"So you can marry both of those together, so if there is a grand-mal or if he is moving, instead of the carer getting up every 5 minutes or whatever you can turn that on and actually see what is going in the room."
"There is a camera in Michael's room and you can set it up to with ordinary cables ... I've got a lot of data on this that I went into in great detail where you can have the combination of both. One is the Cocoon and you can get that from Dick Smith and the other one is being manufactured in South Australia. ... it really is effective."
201 Ms Bishop went on to say that these measures had not been trialled because the plaintiff was living in rented premises.
202 Ms Bishop agreed that if the alarm went off the carer would check the monitor and if required get up and attend to the plaintiff (T272).
203 In cross-examination Ms Bishop confirmed her recommendation of passive care at night (T277).
204 Dr Burke supported Ms Bishop's recommendation of passive care (T483).
205 In cross-examination Dr Burke said at T492 that he envisaged passive care working as follows:
"[The] person would be sleeping nearby, [and] would have some sort of alarm system to alert them if there was any problems during the night which I gather there has been - an alarm system put in place to alert the person on duty to go to his aid if needed during the night. But not to be sitting awake by his bed or night ... that's the difference."
206 I accept that at night a carer is not required to be awake and next to the plaintiff's bed. If this is what was meant by active care, I accept that it would not be necessary or reasonable. However, a shift will be charged as an active shift when a sleep carer gets up more than twice or is engaged in caring for the plaintiff for a total of more than one hour. I accept that the plaintiff's mother, who for all practical purpose has been his sole carer at night and is well aware of what has happened in the past, checks up on her son more than twice per night. I find that her actions in this regard are reasonable for her son's care.
207 In a practical sense, even if alarms and monitors are set up as recommended by Ms Bishop, whenever an alarm is triggered it would be difficult to envisage a situation where the carer would not be required to get up and check on the plaintiff. This is so, having regard to evidence of Mrs James and to the contents of Exhibit 3 and Exhibit 5. The plaintiff's VPAP mask frequently moves, his oxygen levels need checking, his continence pad needs to be changed at night and that if he has a grand-mal fit, his bedding needs to be changed.
208 Mr Lampropoulos submitted in his closing submissions that in reality it is probable that the 11.00 pm to 7.00 am period will almost always be charged as an active shift. I accept this submission. I think it is probable that a carer will, like the patient's mother, be required to get up more than twice a night which will turn a passive shift into an active shift.
209 The provision of an active night shift, is in my opinion a practical and reasonable measure having regard to the plaintiff's needs than that proposed by the defendant. I find that the plaintiff's care at night should be costed on the basis of a fully active shift.
210 An issue in dispute associated with the plaintiff's care is the amount which should be allowed for the education and orientation of carers.
211 There is no dispute that each carer, whether a multi-skilled carer or one of the plaintiff's personal carers, requires orientation at the beginning of his or her appointment and then continued education as to the plaintiff's condition, health, routine and special needs as well as safety issues associated with his care. Ms Bishop estimated that three to four sessions, each lasting two hours, would be required per year for approximately four staff: Exhibit 15 p 68. The word "approximately" is used to convey that the number of staff may vary depending upon turnover.
212 Ms Suzanne Bridge, a registered nurse and director of Care Net, estimated that each worker would require two hours of initial training and then four hours during the year of what she described as "annual updates". She estimated that the number of carers required to undergo this training would be nine. She said that a total of six carers would be required to work the 12 hour shifts necessary for the plaintiff's personal care and another three workers would be required to perform the duties of multi-skilled carers (T224-5).
213 There was no real difference between Ms Bishop and Ms Bridge as to the number of hours per year of education that a carer would be required to receive. The main difference between Ms Bishop and Ms Bridge was the total number of carers who would need to be retained to look after the plaintiff.
214 As to this, I prefer Ms Bridge's estimate. Care Net is the organisation that will be retained to provide the plaintiff's carers. Ms Bridge is, I think, in the best position to know the number of staff required to care for the plaintiff bearing in mind that the work is arduous, and staff are entitled to breaks during the week, and to go on holidays. There is likely to be, because of the nature of the work, some turnover of staff and while it is important that staff develop a personal rapport with the plaintiff it is also important that there is a sufficient pool of staff to enable breaks and to prevent staff from burning out. In my view, Ms Bridge's estimate as to the number of carers is more realistic than Ms Bishop.
215 I find that staff will require six hours of education per year and that an allowance should be made for education and orientation for staff on the basis that there will be a staff roster of nine, being six personal carers and three multi-skilled carers.
216 The plaintiff has lived all his life with his parents. Since the accident that accommodation has been barely adequate for his needs.
217 As the plaintiff is largely wheelchair bound he needs more space to manoeuvre his chair in his bedroom, his bathroom and in the corridors. He requires extra room outside for his recreation. Additional storage space is required to deal with the extra equipment and supplies he requires.
218 Recently his parents renovated their house with the plaintiff's special needs in mind, including a separate area for the accommodation of carers. These renovations, which were completed during the trial, cost $209,550: Exhibit 13 p 42. The work that was performed included construction of a bedroom, activity room and bathroom and an additional carer's room with a bathroom and amenities area.
219 The plaintiff no longer plans to live at his parents notwithstanding the completion of the renovation. His plans are to build a project home close to his parents. He will pay for the house and land from his own funds. I make no criticism of the plaintiff or his family for this decision. This decision has been made to allow Mrs James to regain, to some extent, a normal life and give the plaintiff a measure of independence. The relevance of the parents' renovation is that it gives some indication of what kinds of modifications are required to a home to give the plaintiff a reasonable standard of accommodation and cater for his accident caused needs.
220 It is the plaintiff's case and I accept that were it not for the accident he would have lived, at best for him, in a one bedroom unit somewhere in the Bunbury region. As a result of the accident, he has the additional needs that I have just mentioned. Further, and it was not in the end disputed by Mr Clyne, he has an accident caused need for carer's accommodation and for an office area. The carer's accommodation is necessary to allow the carer who undertakes the nightshift to have somewhere to sleep along with his or her own bathroom. The home office is needed because there is a lot of administration associated with the plaintiff's care and it is also a place where meetings and handovers can take place.
221 The main issue relating to his home modifications revolve around questions as to what precisely are the plaintiff's accident caused needs and what is a reasonable response to those needs.
222 The only expert witness who gave evidence on the subject was Mr J Christopher Keen, an architect who specialises in consulting to and designing accommodation for, people with disabilities. No issue was taken as to his expertise.
223 Mr Keen prepared two reports which were tendered in evidence as part of Exhibit 13. Those reports are dated 23 November 2006 and 25 May 2009. The only difference between the two reports was that the report of 25 May 2009 updated the costings listed in the report of 23 November 2006.
224 The plaintiff's case was that he should be awarded damages for additional accident caused home modification expenses calculated on the costs of adapting the design of a project home. The defendant accepted that this was a reasonable way to calculate home modification expenses. Mr Keen explained in his evidence that the cost of modifying a project home while it is being built is more economical than altering an existing home.
225 I accept that home modification expenses should be calculated on the basis of what it would cost to modify a project home.
226 The plaintiff claims the following accident caused modifications:
"... you can say 'look should it be 18 should it be 22?' I'm not sure what size you should do it but if you have got a room of around 18, 22 then you really have an office that you can use ..."
I find that it is reasonable to make an allowance an office. I allow an additional 18 square metres of internal space for this purpose at a cost of $32,400.
227 It is clear from Mr Keen's evidence that he believed that it was proposed that a carer would live permanently at the plaintiff's premises. His impression was "their [the carer's] address would be the same as him [the plaintiff]".
228 This was not the plaintiff's case, although the carer who does the 7.00 pm to 7.00 am shift will need a bedroom and bathroom.
229 Mr Keen's evidence was that the cost of a granny flat would be much the same as having a carer live within the plaintiff's house. On this basis, Mr Lampropoulos submitted that I should allow an amount for the carer's accommodation in the sum of $134,090.
230 Mr Clyne submitted that if the carer was accommodated within the house there would be no need to provide for the additional costs of a living room, kitchenette, site connections and other items such as floor finishes, furniture and fittings and the like would need to be reduced.
231 I find that the plaintiff will reasonably incur as an additional expense the cost of providing a carer with an internal bedroom and bathroom. Those areas will need to be properly fitted out and furniture will need to be purchased. The plaintiff is entitled to a reasonable amount by way of floor finishes and window treatments. I reject any claim for the cost of a living room and kitchenette and for site connections, car parking, a telephone or intercom and landscaping. These expenditures are unnecessary because the carer will be living in the house.
232 I was not provided with costings for the carer's room and bathroom. I note that an additional room and ensuite bathroom built at the plaintiff's parent's residence cost $51,700 (Exhibit 13 p 42). I realise this is a renovation to an existing house. In my opinion a reasonable estimate for the cost of a bedroom and bathroom for a carer including such items as floor finishes, furniture and fittings is $65,000.
233 The total sum I allow for the provision of extra internal and external space and the carer's room and bathroom is $158,800.
234 The plaintiff sought the following other housing modifications (Exhibit 13 p 16):
Air-conditioning to bedroom and living areas $10,000
Alteration to lighting with extra points and dim switches to
Floor finishes for extra space timber or carpet $6,700
Special furniture for Michael's area/bedroom/living/dining room $700
Alteration to entrance paving to eliminate step up at rear patio $300
Provide security screens, shutters and lights $5,000
235 With respect to the internal area the defendant accepts the claimed amounts save for:
236 With respect to the external expenses, the defendant accepts the claimed additional expenses save for:
237 I allow the claims made by the plaintiff which are not disputed by the defendant.
239 In relation to the automatic door opener, Mr Keen accepted that this "might be a luxury" T471. As I understand it, the proposal is to install a system which allows the front and rear doors to be opened remotely. I do not think that this is a reasonable expenditure given that a carer will be on site all the time. I disallow this claim.
240 With respect to the front door control lock, I do not regard this as a reasonable expenditure and I disallow the claim.
241 With respect environmental controls, the evidence of Mr Keen was that by "smart wiring" the house the intercom, lights, radio, television, windows, shutters, curtains and the doors could be controlled by computer. It was Mr Keen's opinion that such environmental controls would make the plaintiff's life, more independent and easier T472. I do not think this proposed expenditure is reasonable and I do not allow it. The various appliances and internal fittings can be easily and reasonably dealt with manually by the plaintiff's carers.
242 With respect to the modest proposed expenditure for ceiling fans I allow this claim because there will be times where temperature control can be more economically achieved by using ceiling fans than by putting on the air-conditioning system. In the long run this modest expense will save power.
243 With respect to the claim for grab rails, the defendant's submission is that there is some duplication with additional grab rails which will be required in the plaintiff's bathroom. I do not think that there is in fact any doubling up of this item of expenditure and that the grab rails that I refer to here are grab rails in addition to those required in the plaintiff's bathroom. I allow this claim.
244 With respect to the furnishing of the office, I accept that expenditure on a desk, meeting table, chairs, filing cabinet, a computer and printer would be reasonable. The sum of $15,000 was not explored in any detail in the evidence. The defendant says that the claim of $15,000 is excessive but again, there is no evidence as to what would be reasonable. Doing the best I can on the paltry evidence before me, I am prepared to allow $8,000 to furnish the office.
245 With respect to the plaintiff's claims for the external area, I find as follows.
246 With respect to landscaping, I accept that the additional external area required for the plaintiff should be landscaped. I further accept that the landscaping should be, as the plaintiff claims, on an "easy care" basis. The plaintiff claims $7,000 for landscaping. I do not regard this sum as excessive and I allow it.
247 With respect to security screens, I am not satisfied that these are in fact accident related. It has not been established that the plaintiff's accident related injuries require additional home security. I disallow this claim.
248 With respect to the claim for an automatic gate, Mr Keen's evidence was that he envisaged that the automatic gate would be at the front of the house as part of a front fence. In my view, the provision of an automatic gate is not an additional accident related expense and, in any event, the evidence does not establish that it is reasonably required by the plaintiff. I disallow this claim.
249 I allow other housing modification expenses as follows.
Air-conditioning to the bedroom and living areas $10,000
250 The total sum I allow for other internal and external modifications is $44,900.
251 I accept that with respect to the modifications which I have found to be reasonable, there will be fees associated with the builder and designer. I find that the defendant is liable to pay those reasonable fees. It seems from Mr Keen's costings those fees will be 15 per cent of the cost of the works. The total cost of all works is $203,700. I allow $30,555 for fees.
252 I accept that there will be additional maintenance costs associated with the housing modification expenses I have allowed. I am prepared to allow those costs including replacement costs as estimated by Mr Keen in his report of 22 May 2009 at $5,850 per annum (Exhibit 13 p 17).
253 I now turn to the question of the plaintiff's claim for a swimming pool.
254 The plaintiff's claim includes the building of a swimming pool and spa and associated maintenance and running costs. The estimated cost of the pool and spa is $48,400 and the maintenance cost is $2,310 per annum.
255 The defendant's case is that the benefits of a swimming pool and spa are slight and are unreasonable.
256 Mrs James said that she and her husband built a swimming pool at their house in order to provide the plaintiff with water exercise. She said that she did this because the plaintiff's physiotherapist thought that it was a good idea and because the plaintiff's MRSA meant that it was unhygienic for him to use public facilities. Ms James said that the plaintiff performs running exercises and swims over-arm in the pool. She said that he is able to do this with his oxygen tube connected. She said a person walks at the side of the pool carrying an oxygen cylinder and someone else is in the water with him to ensure that he does not have a seizure and go under T148.
257 A physiotherapist, Therese Reeves, provided a report dated 20 December 2007. Ms Reeves did not give evidence and her report was tendered by consent. Ms Reeves noted that throughout October 2007 the plaintiff used the pool on visits to Perth. She said at Exhibit 18 p 48:
"Physiotherapy treatment following these visits showed Michael with increased energy levels, more alert and stimulated through exercise. Pool therapy and exercises would certainly benefit Michael for the following reasons:
(i) improve breathing capacity;
(ii) improved endurance;
(iii) improved ability to immobilise joints in upper and lower limbs and spinal joints;
(iv) improved social interaction."
258 Swimming is not the plaintiff's only exercise or physiotherapy. He is also constantly encouraged to cough. He engages in game activities such as dancing and punching. Ms Reeves notes in her report that the plaintiff walks laps and can do push-ups. All of these things she said increased his strength, vigour and balance.
259 In the plaintiff's physiotherapy plan for 2008 Ms James recommended that the plaintiff engage in:
260 There is some evidence that the plaintiff is not allowed to use local municipal swimming pools because of his MRSA: Ms James T147 Mr Keen report Exhibit 13 p 3.
261 Dr Golledge said in his report dated 24 July 2007 at Exhibit 20 p 96:
"There is no doubt that having his own pool will make things considerably easier for Mick and his parents to allow some form of aquatic exercise although this will be severely restricted by his hypoxia and hypercapnia with desaturation of supplemental oxygen. I could not envisage that Mick would be able to perform enough gainful exercise in a pool of oxygen to allow significant improvement in lung function and significant weight loss. Therefore my feeling about the benefit of a pool at home is that any likely benefit is only going to be a small one and I would find it difficult to support the cost of a home pool with marginal benefits that are likely to ensue."
262 Dr Colledge did not expand upon this statement in his evidence.
263 Dr Colledge was under the impression that the plaintiff engaged in pool activities while off supplemental oxygen. As to this he was mistaken.
264 I accept that pool therapy would have some benefit to the plaintiff in that it would be a measure which would increase his lung capacity and physical fitness. However, it is also clear that he can undertake other land based activities, such as the ones I saw him engage in, in the DVD, which have the same effects. In my opinion, the benefit of a pool at home is not enough to justify the considerable cost of building the pool and its ongoing maintenance. For these reasons I disallow this claim.
265 The plaintiff claims 14 hours per week by way of future gratuitous services. The claim is that the plaintiff no longer has friends and that family members will fill in that void over and above what they would otherwise have done. Further, it is submitted that the plaintiff will require intermittent assistance from family members to assist with the activities of daily living and personal care.
266 The defendant's case is that no allowance should be made under this head of damage. Once the proposed 24 hour care regime is put in place, the defendant submits, there will be no need for further services to be provided to the plaintiff by his family. Alternatively, if an award is to be made, it should be modest and should be deducted from the amount provided for the plaintiff's future care.
267 The plaintiff's mother said in her evidence, and I accept, that following the accident, because of its consequences, the plaintiff no longer has any friends. To some extent the void has been filled by his carers but this is not the same as having friends. The evidence was, and I accept, that his sisters see him whenever they can but there was no evidence that they made trips to see the plaintiff over and above the trips that they would normally make to see their brother. In my opinion, the evidence is not sufficient to award future gratuitous services on the basis that family has to fill in the void caused by the loss of his friends.
268 With respect to the submission that the plaintiff will require intermittent assistance from family members, the only real evidence about this came from the plaintiff's mother. At T148 she described her future role in these terms:
"I'd like to be Mum. I'd like to go back to having visitation rights, as you would with any other child that's left the nest. I don't want to be cleaning his bottom and giving him an enema or feeding him pureed or thickened fluids or, you know, minced foods. I want to be back to being a Mum. I don't want to be showering him and toileting him and so I'm hoping that he can just have his own carers after him and I'll just visit."
"... it seems like he's going to be living close to us so that we still have to have some sort of input into his care regime. Make sure that he's getting looked after, making sure that he isn't getting fed things that he's not supposed to. Making sure carers turn up and if they don't I'm close by ..."
270 In cross-examination, Ms James described having a monitoring in the plaintiff's care. At T173 she said:
"I'm going to monitor. That's why I can't step back completely. But I will be monitoring Michael still."
271 In my opinion, the plaintiff's mother will reasonably continue to provide some care for the plaintiff as a result of the accident. While the plaintiff's future care will in very large part be undertaken by those retained by Care Net, Ms James has a wealth of experience dealing with all aspects of her son's care and will, on an intermittent basis, give assistance to the carers at all levels.
272 The defendant submitted that to the extent that the plaintiff's mother might monitor his care, this would be little different to what would have been required as a result of his Downs Syndrome. I think that there will be some additional reasonable monitoring as a result of the accident bearing in mind, in particular, the plaintiff's respiratory problems and epilepsy. These are conditions are not related to his Downs Syndrome.
273 I am prepared to make an award for future gratuitous services to be provided by the plaintiff's mother. However, I can see no basis for a claim based on 14 hours per week. There is no evidence as to the number of hours per week the plaintiff's mother would provide by way of future gratuitous services. In my view, bearing in mind the comprehensive care regime which is proposed for the plaintiff, future gratuitous services will be modest. I am prepared to make an allowance of 2 hours per week for such services. I do not think that I should reduce the amount I have awarded for future care to take into account Mrs James' future gratuitous services. In my view, the services to be provided by Mrs James will be in addition to the 24 hour care which will be provided to the plaintiff.
274 I now turn to the plaintiff's claim for additional holiday expenses.
275 The plaintiff claims increased costs of taking holidays. I accept that I may award the plaintiff compensation for such costs: Morris v Zanki (1997) 18 WAR 260 at 282. The issue here is what is a reasonable award.
276 The plaintiff's claim is that he will in the future travel on holidays; once to Disneyland in California, once to New Zealand, four times to the Eastern States, including the Gold Coast, Sydney and Melbourne and twice within Western Australia. It is submitted that as a result of his accident caused disabilities he will be required to:
(b) whenever air travel is necessary, pay for his carers and him to fly business class to better accommodate his physical needs and oxygen equipment;
(d) when travelling outside Western Australia, pay for the carers' travel insurance; and
(e) when travelling outside Western Australia, hire and pay for a larger than normal vehicle to fit his wheelchair and equipment.
277 The various additional costs claimed by the plaintiff have been fully itemised in his schedule of damages. There is no dispute as to the costings set out in that document.
278 The defendant submits that the evidence establishes only that the plaintiff has travelled once to the Eastern States in the past 12 years and plans only one further trip to the Gold Coast in the future. It is conceded that there will be some extra expense associated with any holiday that the plaintiff undertakes. The defendant submits that an award of $25,000 is reasonable in all of the circumstances.
279 It is true that since his accident the only holiday undertaken by the plaintiff has been to Sydney in 2008 for three days to enable him to see a live performance of High School Musical. In her evidence (T149-151), Mrs James described what was involved in this trip. The plaintiff, a carer and Mrs James flew to Sydney in economy class. Four oxygen cylinders, each about a metre high, had to be stowed onboard. The cylinders had to be changed during the trip which was not easy to do. A limousine took the group to a hotel where they were accommodated. The plaintiff saw the show and thoroughly enjoyed himself. I have no doubt that it was a worthwhile trip.
280 Mrs James said that she had future plans for the plaintiff to go to Movie World on the Gold Coast, T151.
281 I do not think that the plaintiff should be housebound for the rest of his life. He should be able to travel on holiday in order to enhance his enjoyment of life. I find that the plaintiff will benefit by taking holidays. The trip to Sydney demonstrates that air travel for the plaintiff will be logistically difficult but I am satisfied that the plaintiff can travel by air within Australia.
282 The defendant submitted that because the plaintiff had only been on holiday once in the last 12 years and he had only one holiday planned in the future, it is unlikely that he will go on holiday very often. I do not think that the amount of the plaintiff's travel in the past is a good indication of what will happen in the future. In my view the lack of holidays in the past has been a reflection of an inability on the part of the plaintiff and his family to afford holidays. Once this case is finalised, the plaintiff will have the financial resources to holiday more frequently.
283 Whenever and wherever the plaintiff holidays in the future, any holiday will cost more because of his accident related conditions. In particular, the two carers that I find will need to accompany him will have to be accommodated and provided with meals. I accept that travel insurance should be purchased for them for any holiday outside Western Australia. There will be, if the plaintiff leaves Western Australia, a need to hire a larger than normal vehicle. I am not satisfied, on the evidence, that the plaintiff or his carers need to fly in business class.
284 The question remains what sum by way of extra holiday costs is reasonable? I think it is most likely that the plaintiff will travel within Australia either to the Eastern States or within Western Australia. I have come to this view because the plaintiff now has some experience of this and because there is a specific plan to travel to the Gold Coast. While I do not preclude the possibility of overseas travel, I have no evidence as to how the plaintiff would cope with this. It is I think one thing to travel within Australia and another thing to travel longer distances for longer periods overseas. With respect to the claim that the defendant should fund the extra costs associated with a trip to Disneyland, I do not think that it is reasonable for the defendant to shoulder that expense.
285 The task of assessing a reasonable award under this heading is not easy. I do not precisely know how frequently the plaintiff will holiday. I accept that the plaintiff's accident caused expenses will be quite substantial. I am prepared to accept that he will travel in the future to the Eastern States at least several times and within Western Australia more frequently than elsewhere because he will be able to use his own vehicle and destinations will generally be more accessible. He may travel overseas. Doing the best I can, I am prepared to allow $60,000 under this heading.
286 Under this heading I will deal with the plaintiff's claim for the cost of providing, maintaining and in time replacing:
(a) equipment associated with his well being and care including, but not restricted to, the cost of wheelchairs, hoists, bed-railing, commodes and the VPAP machine in the sum of $126,133.63; and
(b) a motor vehicle adapted for the plaintiff's needs in the sum of $146,547.96.
287 The detailed claims and costings are set out in the plaintiff's schedule of damages.
288 It is not disputed by the defendant, that the plaintiff has accident caused needs with respect to equipment and a motor vehicle. The defendant's submission, generally, with respect to equipment and a motor vehicle is that after the 15th year no further claim should be allowed. Further, all claims should be subject to a 10 per cent discount for negative contingencies.
289 The defendant also made specific submissions about some items claimed by the plaintiff. These submissions were as follows.
290 As to the plaintiff's equipment, there is no reasonable requirement for the plaintiff to have two tilt wheelchairs, the Quickie Iris and one electric. If I allow the claim for the electric wheelchair, it is submitted that the manual wheelchair will only be used as an emergency and although it will need to be maintained, its use will be so infrequent that it will not have to be replaced. Accordingly, no allowance for a replacement Quickie Iris should be made. The defendant also submits that I should reduce any award by 10 per cent (being additional to the claimed 10 per cent discount for negative contingencies) to take into account the improbability that each and every item of equipment will be replaced at the nominated replacement date.
291 As to the motor vehicle, the defendant's submission is that a new vehicle should be immediately purchased and modified. That vehicle, it is submitted, should be replaced and new modifications installed every seven years rather than every five years as claimed by the plaintiff.
292 I will first deal with the defendant's general submissions.
293 I reject the submission that no replacement equipment should be provided for after 15 years. I accept, based on Ms Gail Sharp's reports, that the proper replacement periods for equipment are as provided in the plaintiff's schedules. This submission was based on the plaintiff's life expectancy being 18 years, a submission that I have already rejected in favour of a life expectancy of 22 years.
294 I also reject the defendant's submission that a 10 per cent negative contingency applies to the items claimed by the plaintiff. This submission is contrary to the authority of Sharman v Evans.
295 I now turn to the defendant's specific submissions.
296 With respect to the plaintiff's wheelchairs, as I mentioned earlier in these reasons, the plaintiff presently has two chairs. One is a Glide Transit wheelchair which is a very basic non-tilt manual wheelchair that folds up and is kept in the rear of the plaintiff's parent's KIA van. He also has been provided by the defendant's insurers with the Quickie Iris tilt manual wheelchair which the plaintiff presently uses on a daily basis both inside and outside. This is a much more comfortable and functional wheelchair than the Glide Transit. Nevertheless, it is not without its problems.
297 Ms Gail Sharp gave evidence and provided a report as to the plaintiff's equipment needs. Ms Sharp is an occupational therapist with 28 years experience. She has expertise in assessing the needs of those who have serious physical disabilities such as the plaintiff. She visited the plaintiff and saw him at home and assessed his equipment needs including his need for a modified motor vehicle. She provided a report dated May 2007: Exhibit 18 p 49-73. Her evidence was not seriously challenged and I accept it. Ms Sharp said this about the Quickie Iris at Exhibit 18 p 56:
"The areas Michael is able to visit in his manual wheelchair are dependant on the terrain as well as the fitness of his carers. The manual wheelchair will negotiate firm surfaces, but his carers will have difficulty in pushing it over soft, uneven or slippery surfaces. The combined weight of Michael and his manual wheelchair is approximately 100 kg and this is a heavy weight for any carer to push over a period of time. Slopes, ramps and hills will be particularly difficult."
298 Ms Sharp recommended that in addition the Quickie Iris, the plaintiff should purchase a Glide Series 6 electric wheelchair with a tilt seat and an electric control for the attendant. She recommended that this machine should be replaced every five to seven years (Exhibit 18 p 70).
299 The Glide Series 6 would not be used indoors because the plaintiff would not be able to precisely control it in confined spaces but it would be used outdoors. Ms Sharp said at Exhibit 18 p 56:
"The issue as to the provision of an electric wheelchair with attendant control a difficult one - it would be used only for outings, but would enable Michael to visit a greater variety of destinations, and enable his carers to easily and safely propel him in his wheelchair for a greater period of time. As his parents age it will enable them to continue to take him on a range of outings."
300 I am satisfied that it is reasonable for the plaintiff to have both the Quickie Iris and the Glide Series 6 tilt wheelchairs. I find that the electric wheelchair is reasonably necessary when the plaintiff is outdoors and especially where some distance is involved or where the terrain is more difficult or where a carer needs to push the plaintiff for some period of time. The plaintiff is heavy and it would be safer for anyone who would have to otherwise push him to use an electric wheelchair. Further, the provision of an electric wheelchair would promote his wellbeing by making it easier for him to leave the house and be taken on outings.
301 Between the Quickie Iris and the Glide Series 6, the Quickie Iris will be used on a daily basis whereas the electric chair will be used less frequently, perhaps twice weekly. Having regard to Ms Sharp's report, at Exhibit 18 p 70 I find that the Quickie Iris will need to be replaced every five years and the Glide Series 6 will need to be replaced every seven years.
302 There is also the question of the Glide transit chair. This chair will be used as a spare. It will need to be maintained, and replaced every 10 years.
303 With respect to the submission that the plaintiff will probably not replace each and every item of equipment, there was no evidence about this. Mr Clyne based this submission on "common sense". I do not think it is "common sense" that the plaintiff will probably not replace items of equipment. I will not reduce the plaintiff's claim for this contingency.
304 In relation to vehicle expenses, I find that the plaintiff would not have had, prior to the accident a need for his own motor vehicle. As a result of his Down Syndrome, he would not have been able to drive. It is likely he would have ridden his bicycle, taken public transport or he would have been driven somewhere by his family.
305 As a consequence of the accident, whenever he leaves home, he must be driven. At the moment, his parents own a KIA Carnival van. This van has not been adapted in any significant way for the plaintiff's needs. For example, because the Quickie Iris tilt wheelchair is not collapsible it cannot fit in the van. With some difficulty the plaintiff can get in the van but when he reaches his destination the only wheelchair that can be used is the Glide Transit. While the plaintiff could catch a maxi-taxi which is designed to accommodate persons in wheelchairs, it is often inconvenient to do so and the service is unreliable.
306 The plaintiff claims an award of damages for motor vehicle expenses being:
(a) the difference in cost between a small standard sedan, a Toyota Camry and an appropriate van for the plaintiff's needs, a VW Crew Van;
(b) the costs of modifying the van for the plaintiff's needs, most significantly, by installation of a wheelchair hoist and wheelchair restraints;
(c) replacement of the van modifications every five years;
(e) the costs of cleaning the van, insuring it and RAC membership.
307 I find that the plaintiff has an accident caused need to purchase a van such as a VW Crew Van and modify it to his needs by installing a hoist and wheelchair restraints. The other associated expenses claimed by the plaintiff are in my opinion reasonable.
308 There was not a lot of evidence about the replacement interval of the van. Ms Sharp in her report at Exhibit 18 p 72 seems to suggest that the vehicle should be replaced every five years. I say "seems" because although there is no specific statement as to when the van should be replaced, her recommendation is that the hoist should be replaced every five years and that would most likely be done when the vehicle is replaced.
309 I find that it is reasonable to replace the van every five years rather than every seven years. The evidence suggests that the van will be used to drive the plaintiff around the Bunbury area. In addition he will be required to attend medical appointments in Perth and the van will be used to transport him on holidays within Western Australia. It is also important that the van be reliable and not get too old. In the circumstances I think it is reasonable that the van should be replaced every five years.
310 I assess the damages payable by the defendant to the plaintiff for equipment as claimed save for the Glide Series 6 chair will be replaced every seven years making replacements at years 7, 14 and 21.
311 With respect to vehicle expenses I allow the plaintiff's claim.
312 Except for a small number of items, the plaintiff's claim for future medical expenses has been agreed. I will allow these claims subject to what I have to say about the items in dispute.
313 The plaintiff claims an amount for general practitioner consultations at home at the rate of $99 per visit. The rate claimed is AMA list item AA100 for a Level B consultation. The defendant's submission is that a B consultation is charged at $62 per visit. Having regard to Dr Buckley's report of 11 October 2007 Exhibit 20 p 17 the correct rate is $99 and I allow the claim for GP consultations at home at that rate.
314 The plaintiff claims the cost of neurological reviews by Dr Walsh at the rate of $110 per consultation. I accept that this is the AMA list rate for item number AJ020. However, Dr Walsh in his report dated 22 May 2009 Exhibit 20 p 186 stated that the present cost of treatment is $93 per visit. I allow this claim at the rate of $93 per visit.
315 The plaintiff claims the cost of being reviewed by Dr de Chaneet four times a year and in addition makes a claim for a visit to a respiratory physician twice per year. Dr de Chaneet is the plaintiff's respiratory physician and I can see no reason for the additional two visits. I allow the claim with respect to Dr de Chaneet on the basis of four visits per year at $150 per visit. I disallow the claim for two visits per year to a respiratory physician.
316 The plaintiff claims $150 per visit to Dr Golledge, six times per year. The plaintiff's claim is based on AMA list item number AJ020. The evidence of Dr Buckley Exhibit 20 p 17 is that the rate for this item is $110. The date of this document is November 2006. The schedule of medical expenses paid by the Insurance Commission of Western Australia, Exhibit 32, reveals that Dr Golledge charged the plaintiff $68 per visit between 3 January 2007 and 10 September 2007. I am mindful that $68 per visit was paid over 2 years ago and that rate seems low. I allow this claim at the rate of $110 per visit.
317 The plaintiff has consulted a general practitioner, Dr Ivy Bullen who has prescribed to him a range of vitamins, minerals and probiotics. The vitamins, minerals and probiotics and their cost are set out in the plaintiff's schedule of damages.
318 The defendant submits that the evidence only establishes a need for vitamin C and that is the only part of the claim that should be allowed.
319 In his examination-in-chief, Dr Golledge said that he was aware of the vitamins and probiotics which had been prescribed by Dr Bullen. At T406 Dr Golledge said that the plaintiff would always have a life long requirement for intermittent antibiotic therapy. He said:
"I think while he's needing to go on antibiotics on a regular basis he should always have some probiotics and vitamin supplementation. And he probably should continue that indefinitely, because one of the things that antibiotics do when it disrupts the normal bacterial flora of the gut, the normal gut flora is very important in terms of controlling infection with other organisms and also synthesis of some vitamins. And when you go on broad spectrum antibiotics, that gut flora can become severely depleted so can render one susceptible to super infection with resistant organisms and also can make a person vitamin deficient because of the good bacteria that are being wiped out by the antibiotics so it is always a good idea to replace those antibiotics with probiotics - sometimes prebiotics as well - to try and keep that gut nice and healthy keep those vitamin levels up, and also supplement the vitamins as well. And particularly again with vitamin C which is also important in the healing as we talked about before. So I think it makes good sense - and this is what we do with all our patients on long term antibiotics - to try and supplement them with probiotics and vitamins to try and keep the gut nice and health."
320 It is clear that Dr Golledge is aware of the vitamins and minerals being prescribed by Dr Bullen and regards them as reasonably necessary having regard to the plaintiff's ongoing need antibiotic therapy. In light of this evidence, which was not challenged, the claim for vitamins, minerals and probiotics is allowed in full.
321 I stated at the outset that a number of heads of damage had been agreed by the parties prior to trial. Because the plaintiff is under a legal disability it is necessary for me to approve these agreed items pursuant to O 70 r 10 of the Rules of the Supreme Court 1971. The legal principles which I must apply before I can approve the agreed items are set out in Sosa v Carter [1978] WAR 123 per Burt CJ. In essence, a court should not approve a proposed settlement unless it is of the opinion that it will be for the benefit of the plaintiff.
322 The items which have been agreed are as follows:
323 Having heard the evidence at trial and the submissions of counsel, both of whom are very experienced in assessing damages for personal injury, I approve these sums. The only item which requires particular analysis is the item relating to trustee's fees.
324 As to this, the defendant provided me with further written submissions on 21 August 2009 to which the plaintiff responded on 27 August 2009.
325 The plaintiff's damages will be paid to the Public Trustee who, by virtue of s 37 of the Public Trustee Act 1941, has the duty to hold and invest the sum for the benefit of the plaintiff. The Public Trustee is entitled to charge and receive fees for it's functions and services in accordance with a scale of fees published in the Government Gazette: s 38B of the Public Trustee Act.
326 In addition the Public Trustee is entitled to charge against the sum held on behalf of the plaintiff all expenses it incurs in respect of the administration of his estate.
327 The Public Trustee can enter into portfolio management contracts: s 40 of the Public Trustee Act. In this case the Public Trustee will invest the plaintiff's damages in part in the Public Trustee's common fund and in part with fund managers outside the Public Trustee. The theory of placing funds with external fund managers is to take advantage of their specialised investment knowledge to maximise the return to the plaintiff.
328 Fund managers charge a fee for this expertise. This fee is levied against the entire fund under management and is deducted from the fund before any benefit is paid to an investor. This fee is called an MER, which is an acronym for Management Expense Ratio. An MER is the percentage of funds under management levied as fees by a fund manager. It is not a fee levied by or against the Public Trustee. The return to the Public Trustee is net of the MER.
329 There is controversy about whether MERs should be paid by the defendant or should be an expense shouldered by the plaintiff. There are arguments both ways and no binding decision has been delivered.
330 The defendant has offered $350,000 by way of Public Trustee's fees but makes no offer with respect to MERs. If MERs were awarded the total amount of the Public Trustee's fees and MERs would be substantially more than $350,000. The defendant's position is if the plaintiff does not accept the $350,000 which has been offered it will seek to further litigate the entire issue of fees on the basis that the plaintiff's need for fund management and investment advice was caused not by the accident but rather by his pre-existing Down Syndrome.
331 The parties' position is, rather than litigate the issue, they wish me to approve the sum of $350,000 as a sum which represents an amount for all fees whether levied by the Public Trustee or MERs.
332 In my view this is appropriate. This litigation should be finalised not prolonged. The parties have fully considered their positions. It is to the plaintiff's benefit for the matter to be resolved without litigation and the sum of $350,000 is not, in all of the circumstances, unreasonable.
(a) A case manager will be required to work 8 hours per month for the first three months and 4 hours per month thereafter [178].
(b) A registered nurse will be required to work 10 hours per week [186].
(c) A multi-skilled carer will be required to work 4 hours per day 7 days per week [189].
(d) The plaintiff will require 24 hour care from a carer on an active basis [209].
(e) Multi-skilled carers and the plaintiff's personal carers require 6 hours of education per year based on a roster of nine staff [215].
(a) The total sum I allow for the provision of extra internal and external space and the carer's room and bathroom is $158,800 [226], [232] and [233].
(b) The total sum I allow for other housing modifications is $44,900 [249] and [250].
(c) I allow $30,555 for professional fees with respect to the building modifications in (a) and (b) above [251].
(d) I disallow the claim for the swimming pool and spa [264].
(a) The plaintiff requires two wheelchairs, the Quickie Iris and the Glide Series 6 electric wheelchair. The Quickie Iris will need to be replaced every 5 years and the Glide Series 6 every 7 years [300-301] and [310].
(b) The plaintiff requires a VW Crew Van modified for his needs to be replaced every 5 years [307-9].
(a) GPs consultations to be costed at $99 per visit [313].
(b) Dr Walsh's consultations to be costed at $93 per visit [314].
(c) I disallow the claim for visits to a respiratory physician in addition to Dr de Chaneet [315].
(d) Dr Golledge's consultations to be costed at $110 per visit [316].
(e) The claim for the vitamins, minerals and probiotics prescribed by Dr Bullen is allowed [320].
333 I will hear the parties with a view to the filing, prior to 22 January 2010, of a schedule of damages in accordance with my finding. I will also hear the parties with respect to costs.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : MICHAEL AARON JAMES (by his next friend RHONDA DAWN JAMES) -v- GRANT [2009] WADC 201 (S)
BETWEEN : MICHAEL AARON JAMES (by his next friend RHONDA DAWN JAMES)
Plaintiff awarded damages in the sum of $7,448,455.61
James v Grant [2009] WADC 201
1 MAZZA DCJ: On 22 December 2009 I published reasons and made findings of fact. I gave the parties the opportunity to consider those reasons and make calculations, where necessary, in accordance with my findings: James v Grant [2009] WADC 201.
2 The parties' legal representatives have agreed, based on my findings, that judgment should be entered for the plaintiff against the defendant in the sum of $7,448,455.61. That figure is made up as follows:
Past Gratuitous Services (with amended interest of $134,036.53 as at 22/1/2010)
Future Attendant Care incl domestic assistance (incl for Carer Travel of $50,951.25)
Housing Modifications (incl Maintenance of $72,787.50)
3 With respect to the question of costs, I have made an order that the defendant pay the plaintiff's costs of the action to be assessed. The plaintiff wishes to apply for special costs orders. Failing agreement, I will resolve this issue in due course.
Morris
Zanki
(1990) 169 CLR 638
(1997) 18 WAR 260
(1995) 21 MVR 71
(1981) 150 CLR 402
(1961) 106 CLR 523