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[2011] TASSC 55
Supreme Court of Tasmania
2011-10-05
Porter J
Original judgment source is linked above.
HEARING DATE: 15 - 19, 22 - 25 November, 2, 7 December 2010
Torts - Negligence - Road accident cases - Actions for negligence - Res ipsa loquitur - Motor cycle ran off roadway at a corner - Rider and pillion passenger both seriously injured with no recollection of accident - Inference of negligent riding drawn from circumstances.
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121; Lafranchi v Transport Accident Commission [2006] VSCA 81; (2006) 14 VR 359, applied.
Knott v Royal Exchange Assurance [1955] SASR 33, considered.
Torts - Negligence - Contributory negligence - Particular cases - Road accident cases - Pillion passenger on motor cycle - Joyride after rider and passenger drinking alcohol - Warning from friend in course of journey - Passenger contributorily negligent to the extent of 30 per cent.
Torts - Negligence - Injuries to passengers - Defences - contributory negligence - Where affected by alcohol - Pillion passenger on motor cycle - Joyride after rider and passenger drinking alcohol - Warning from friend in course of journey - Passenger contributorily negligent to the extent of 30 per cent.
Damages - Measure and remoteness of damages in actions for tort - Personal injuries - Voluntary obligations - Services rendered with no legal or moral obligation to pay - Applicable principles.
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Van Gervan v Fenton (1992) 175 CLR 327, followed.
Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Other matters - Wilson v McLeay damages - Whether parental attendance at hospital "services relating to attendance" - Whether claim precluded by Common Law (Miscellaneous Actions) Act 1986, s5.
House v Forestry Tasmania [1995] Aust Torts Rep 81-331; Torrent v Lancaster [1991] Aust Tort Rep 81-089, followed.
Grimsey v Southern Regional Health Board [1997] TASSC 103; (1997) 7 Tas R 67, considered.
Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Prevailing standards of general damages - Reference to earlier decisions of the court or other courts for the purpose of establishing appropriate award permitted by Civil Liability Act 2002, s28 - Provision applies even though cause of action accrued before date of commencement of section.
Rodway v R [1990] HCA 19; (1990) 169 CLR 515; Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819, applied.
Damages - Particular awards of general damages - Tasmania - 18 year old male - 27 at trial - Incomplete paraplegia - Non-economic loss of $180,000 - Total award of $1,840,335 after reduction of 30 per cent for contributory negligence.
Judgment Number: [2011] TASSC 55
1 In January 2002, Joshua Potts, the plaintiff, was 18 years old. He was single and lived with his parents. On one night in that January, at White Beach in southern Tasmania, he went for a ride on a motor cycle with a friend, Darren Frost. Both were in a group of young men staying at a friend's shack. The bike left the roadway and hit a tree. Tragically, both men were very seriously injured. They are both now paraplegics. Neither has any memory of the accident. The plaintiff has sued Mr Frost, alleging that he was the rider and that he was negligent in the riding of the motor cycle. Mr Frost claims that, in the event of findings that he was the rider and that accordingly the plaintiff was the pillion passenger, the plaintiff was contributorily negligent.
2 For the reasons which follow, I find that the plaintiff was the pillion passenger and that the defendant was negligent in the way in which he rode the motor cycle. This caused the plaintiff injury. The defendant is liable to pay damages to the plaintiff. I adjudge that those damages should be reduced by thirty per cent for the plaintiff's contributory negligence. Taking into account that reduction, I award damages in the sum of $1,840,335.
3 The accident happened on Tuesday 8 January 2002. It occurred late in the evening; the time is roughly estimated to be about 11pm. Police arrived at the scene at 12.45am on 9 January. The location of the accident was White Beach Road which generally runs along the foreshore of White Beach, and very approximately in a north/south direction; more nor easterly/south westerly than anything. At the point of the accident the road is flat with the bitumen surface being approximately 11 metres in width. A short distance from the accident scene, Lagoon Road forms a "T" intersection with White Beach Road, running in from the east.
4 The evidence suggests that immediately before the accident, the motor cycle was travelling from south to north. The motor cycle and the two men were found near a tree down a vegetated embankment, on the western, or beach, side of the road. They were a little under 20 metres past the apex of a right hand bend, following a relatively straight line from the line of the roadway leading up to the corner. The evidence suggests that the motor cycle was travelling on the left hand side of the roadway, with the rider failing to negotiate the right hand turn with the cycle running off the roadway in a straight line, and colliding with the tree. I will come back to greater detail of the accident scene and the location of the motor cycle and the two men.
5 On 7 January 2002 the plaintiff went to stay with friends at a shack at 30 Lagoon Road White Beach. The shack was owned by the father of one of the friends, Aaron Stirpen. Four young men were staying at the shack. In addition to the plaintiff and Mr Stirpen, Adam Bates and the defendant were also there. The defendant is about eight years older than the plaintiff. The four had played soccer together in the same team, and the purpose of staying at the shack was a "sort of team bonding"; a period of "relaxation before getting into pre-season training".
6 The plaintiff drove himself to the shack. The defendant went there on his motor cycle. The plaintiff said that he had known the defendant for a little over a year. In that time the plaintiff had not seen him drive a car, only the bike. In the time he had known the defendant, he had only seen one other person using the defendant's motor cycle. That was just before soccer training and the defendant allowed the other person to ride the bike on the grass.
7 The plaintiff had a motor vehicle licence but not a motor cycle licence, and had never held a motor cycle learner's licence. He said that he did not really know how a motor cycle operated other than a vague idea of the accelerator and brake being on the handles. He had no idea about the clutch or gears. He had had some experience riding as a pillion passenger. When he was about 13, he rode on a motor cycle with his father. There were not very many times when this happened and they involved short trips.
8 The plaintiff arrived at the shack at about lunch time. The group went to the beach in the afternoon, and after going back to the shack, then drove the short distance to Nubeena where they bought a carton of beer. This was early in the evening. Later the four set about drinking the beer. The played a "drinking game". This was described as follows:
"We played a game which is the first time I'd played it, but where we all just sat around and we had little shot glasses of - empty shot glasses and we'd fill it with beer and then you would drink 30 mils, and then a minute later you would have another 30 mils, and then another minute later you would have another 30 mils, and the idea is to get to a hundred and be a 100 club, but -".
9 The plaintiff said it was the first time he had played this game. He went to bed fairly late. He said he got to the 98th shot, went into the bathroom and "was unwell". He thinks that it was about 1am when he went to bed. He has a clear recollection of getting into bed and zipping up the sleeping bag. That is his last recollection. As noted, he has no memory at all of anything which occurred after he went to bed in the early hours of 8 January, and no recollection at all until he was in the Austin Hospital in Melbourne. He was in the Royal Hobart Hospital for two days and was taken to the Austin Hospital on 11 January 2002.
10 As both men sustained very serious injuries of a similar nature, they were both transferred to the Austin Hospital in Melbourne. Both men were later transferred to the Royal Talbot Rehabilitation Centre, the defendant being the first one transferred there. The plaintiff gave evidence of a very short and inconsequential conversation just before the defendant was moved. However the two spoke whilst at the Royal Talbot. Just before this conversation, the plaintiff had been told that the Motor Accidents Insurance Board ("the MAIB") was asserting that he was at the controls of the motor cycle. When he spoke to the defendant, the defendant said that it was amazing that their injuries were so similar; that it was like someone had attacked them with a baseball bat. The plaintiff said that he then told the defendant "the MAIB reckon I was driving". The defendant is alleged to have said that there was no way that he would have let the plaintiff ride the bike, especially if it was not on grass, and that he would never get on the back of it with the plaintiff. The plaintiff was not challenged in cross-examination about this conversation, nor asked about it at all.
11 Mr Bates said that he has known the plaintiff for about 10 years, and the defendant for possibly 15 years. Mr Bates knew that in early 2002 the defendant had a Yamaha motor cycle and had been riding that bike for about two to three years. Mr Bates had not ever seen the defendant with a pillion passenger on the bike.
12 On 4 January 2002 he had gone with Mr Stirpen to Mr Stirpen's father's shack at Lagoon Road Nubeena. He said that a few days later the plaintiff had come to the shack in his own vehicle. The defendant had also come to the shack on his bike, for which there was no spare helmet.
13 On Monday 7 January, it being a rainy day, the four men stayed inside all day entertaining themselves by playing card games and the like. During the course of that day they all drank alcohol. It was still raining the next day, and they did the same thing except for a trip to the Nubeena bottle shop. He said that a carton of beer in stubbies was purchased and taken back to the shack. (I think I am entitled to note that there are 24 stubbies in an ordinary carton.) It was some time in the afternoon when they bought the beer, and that they had started to drink it when they got back to the shack. They played cards and drank the beer. It continued to rain mostly through the night as it had done through the day. In cross-examination, Mr Bates said that there were three who were drinking the beer from the carton. They were the plaintiff, the defendant, and himself. The carton was shared about equally and the entirety of it had been consumed before the plaintiff and the defendant left on the bike.
14 Mr Bates does not remember any discussion about anybody going for a ride on the defendant's bike, but he saw the plaintiff and the defendant leave the shack. At this stage it was dark; he thinks it was late evening but does not remember the time. When the two left the shack on the motor cycle, the defendant was riding it, with the plaintiff on the back. Neither was wearing a helmet. Mr Bates got the keys to the plaintiff's motor car, got into that car, and attempted to follow the two on the bike. He agreed that as far as he knew the ride was nothing more than a joy ride.
15 He was able to follow them left from Lagoon Road onto White Beach Road. He continued to follow the tail lights of the motor cycle. When asked why he followed them, he said: "Just an instinct that it was safer to be - it just felt wrong, no helmets, no - basically no safety gear, just shorts and a tee shirt.... [I] just wanted to be there, just in case."
16 At the time of the accident White Beach Road followed the foreshore to where there was a creek. The road then took a sharp left turn up to a where a bridge crossed the creek. There was a small parking area where the road took the sharp turn to the left. (There is now a bridge across the creek at that point.) Mr Bates said he caught up to the pair just before the bend at a time when the bike was stationary on the left hand side of the road. He said that he was not sure but he thought he pulled up also on the left hand side. He spoke to the two men on the bike. He "suggested to them that they should head back to the shack". He felt that "everything was unsafe." He said that they both agreed and turned around on their bike and started to head back in a northerly direction towards the shack. At this time the defendant was the rider. By the time Mr Bates did a three point turn in the vehicle, the bike was out of his sight and he could not see them at all.
17 He drove along White Beach Road and then Lagoon Road to the shack which took him about a minute or two. The bike was not there when he returned. He and Mr Stirpen then got into Mr Stirpen's vehicle and went looking for the two men. He said that instead of turning left, or south, on White Beach Road, they went in the other direction. Not finding anything, they went back along White Beach Road, and returned to the shack. The plaintiff and the defendant still not being there, they set off again, this time turning left onto White Beach Road from Lagoon Road, effectively retracing Mr Bates' earlier trip in that direction.
18 As they were going south, Mr Stirpen remarked on a red reflection in his rear vision mirror, and they immediately stopped. Mr Bates said he jumped out of the car straight away and went down to a light which he saw in the bushes. The bike was on its side facing in a northerly direction and the two men were about half a metre above the bike (that is, closer to the road), facing the same direction; "Like the bike had just basically fell over and they just fell off and they were just laying there." The defendant was closest to the tree, and Mr Bates saw that both men were injured. The evidence shows that the accident site is 1.1 km from the shack.
19 By reference to police photographs, Mr Bates described the scene as follows:
20 I accept Mr Bates' evidence, there being no reason to doubt its reliability.
Investigation of the circumstances of the accident
21 Constable Darren Leary was on duty at the time and was called to go the scene of the accident. For the purposes of his evidence, Constable Leary's qualifications and experience were explored. For the five years before December 2003, he was attached to the Accident Investigation Branch. He completed a course in accident investigation and reconstruction. In that role he had attended about 270 fatal and serious accidents. He had an additional two years attached to a district traffic section, during which he attended other serious accidents. He said that he had been a "hobby" motor cycle rider before completing a qualification course to become a police motor cycle rider. That training was in about 1995 and he had been a police motor cycle officer for about seven to eight years, which I assume coincided with his attachment to a traffic section.
22 There was nobody at the scene when Constable Leary arrived. It was, of course, dark. He said that the bike was not visible from the road when heading in a southerly direction, and that it was difficult to see it down over the bank in the debris. The bike was in the area of the tree between the roadway and the beach, facing in a north easterly direction. He saw a mark on the tree which he thought was where the bike had hit it, as it appeared fresh.
23 Constable Leary gave evidence of a mark starting just in the gravel verge of the beach side of the roadway which, he said, showed the direction of the bike in the path to the tree. He attributed the mark to the wheels of the bike, although he went on to explain that it would have occurred as a "result of the transferral brakes from front to rear wheel, because you actually put more weight onto the front brakes as you actually apply the brakes, so ..." [sic]. This was further explored as follows:
"You said the mark on the road is consistent with braking of the motor cycle, and did you say something about the load being transferred to the front wheel?....Yeah, it just shows the path that the bike's gone and it just shows there has been a clear transfer - the weight's transferred from approximately - I'd say the rear wheel to the front wheel - not that it's actually locked the bike up, but it's just a transfer of weight from rear to front because of the force."
24 Because of his experience, I accept Constable Leary's evidence as to theses matters. He said that the mark was about 6.2 metres in length, running from the gravel verge to a grass verge. From that point, there was a further 17.8 metres through grass and undergrowth to what he thought to be the point of impact with the tree. A plan of the roadway and mark, hand drawn by him, was tendered in evidence. It is convenient if I attach that exhibit to these reasons as Annexure "A". Although not purporting to be to scale, it was not challenged as a reasonably accurate depiction of the mark as it related to the roadway.
25 Constable Leary's traffic accident report was also tendered. From this, and from his evidence, it appears that there was a speed limit of 60kmh at that point on the roadway. There was no street lighting at the corner. As can be seen from the sketch, the front of the bike is noted as being 24 centimetres from the tree. It is not perfectly clear from the sketch, but the photographs tendered show that the length of the bike was virtually at right angles to the immediate line of the roadway and slightly to the north of the tree. Constable Leary's conclusions were set out in the "Brief Description" part of the accident report as follows:
"Unit 1 travelling in NE [direction] towards Lagoon Rd. Travelling into a right hand sweeping corner the driver of Unit 1 has lost control attempting to negotiate the corner and has travelled down through the scrub & collided with a tree."
26 Constable Leary took the view that the defendant was riding the motor cycle, but this view was based on the information which he had obtained from Mr Bates. No doubt this statement included a reference to the last sighting by Mr Bates of the motor cycle after he had suggested the two return to the shack.
27 In cross-examination, Constable Leary agreed that he was not able to reach any conclusion as to the cause of the accident: "It was inconclusive". He agreed that there were some possible causes that had occurred to him. The first was that the pillion passenger changed his position on the bike which, he agreed, could have an effect on both the driver and the bike itself. He explained this as follows:
"Normally, if you are coming into a corner you use the pillion passenger's weight to help you stabilize the bike, and if all of a sudden the pillion passenger sits upright or comes up out of the aerodynamics of the bike that can upset the structure of the motor cycle and it can cause you know the bike to just react a little bit differently."
28 He also agreed that a sudden application of the front brake "by reason of, for example, the rider suddenly seeing some wildlife in front of him or another vehicle" was a possible cause.
29 There is the aspect of the defendant's blood alcohol level. Apparently at the Royal Hobart Hospital, at 2.41am on 9 January 2002, a sample of blood was taken from the defendant for analysis. A certificate under the Road Safety (Alcohol and Drugs) Act shows that the analysis of the sample showed a nil concentration of alcohol in the defendant's blood. There was no evidence as to what this may have meant in terms of any blood alcohol level at the time of the accident, either in terms of metabolism between then and the time of the taking of the sample, nor any variations which may occur after the taking of the sample. These proceedings do not have the benefit of the presumptions which exist under the Act. Clearly though, the defendant had been drinking in a period not too distant from the accident. No doubt, although Mr Bates did not specifically put it this way, that was a factor in creating his concerns.
30 The last thing that needs to be mentioned in this section is a report of Transport Inspector John Wilson of the Department of Infrastructure, Energy and Resources, dated 30 January 2002. In that report, he sets out the detail of his examination of the bike. He states that prior to, and at the time of impact, the vehicle was in a roadworthy condition. His inspection revealed nothing that could have caused or contributed to the accident.
31 The matter is in issue on the pleadings, but as Mr Read properly conceded on behalf of the defendant, the evidence points to the strong probability that the defendant was the rider. For the following reasons, I am satisfied that the plaintiff was a pillion passenger, and that the defendant was at the controls
32 First, there is the distance from the point where Mr Bates last saw the pair on the bike (with the plaintiff as passenger) and the place of the accident. This is about 200 metres or so. The time of travel between the two points would have been minimal. It is highly unlikely that in the time and distance involved, the plaintiff and the defendant swapped places on the bike. The only alternative scenario is that they rode past the point of the accident, travelled to some other part of White Beach, returned to a point to the south of the accident site, and returned along that road, with the plaintiff at some point having taken over the controls. And this, all the while, evading the searching friends.
33 There are a number of reasons why Mr Bates would not have seen the two men and the bike after the accident when following them after his advice to return. The bike and the men were down an embankment in undergrowth. The area was not well lit. Mr Bates was not looking for them, and would not have been expecting to see them at that point.
34 The plaintiff referred me to a number of cases in which the so called "presumption of continuance" is referred to. A presumption that a person seen driving a motor vehicle shortly before an accident may be presumed to be driving at the time is not, in truth, a presumption. It is matter of drawing an inference. It is, as Dixon J said in Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at 405, "but a deduction from probabilities and must always depend on the accompanying facts". See also Carian v Elton [2000] NSWCA 175 at [28]. I have explained where I see the probabilities lie.
35 Next, there may be some dangers associated with acting in the absence of expert evidence on the evidence of the respective locations of the plaintiff, the defendant, the bike and the tree. However, this evidence is in my view far more consistent with the plaintiff having been the pillion passenger, than the rider.
36 Lastly, the evidence of the lack of experience on the part of the plaintiff in riding a motor cycle, and the attitude of the defendant to the plaintiff riding his motor cycle as shown by the statement made by him at Royal Talbot, add to the probabilities being in favour of the plaintiff being the passenger.
37 The particulars of negligence alleged are as follows. It is alleged that he:
"(a) failed to keep adequate proper or sufficient lookout;
(b) failed to properly negotiate a corner on White Beach Road thereby causing the motor cycle to leave the roadway and collide with a tree;
(c) failed to stop, slow down, swerve or otherwise manoeuvre his motor cycle to avoid a collision with a tree;
(d) rode the motor cycle at a speed that was excessive in the circumstances;
(e) failed to brake or brake the motor cycle sufficiently or in time or manner so as to avoid running off the roadway and colliding with a tree; and
(f) failed to so control manage and steer the motor cycle so as to avoid running off the roadway and colliding with a tree."
38 In addition, although not pleaded, as to which there is no requirement, the plaintiff relies on the principle of res ipsa loquitur.
39 The plaintiff says that all of the particulars of negligence have been made out, but that in any event the inference of negligence can be drawn from the fact the defendant simply failed to take a slight bend and ran off the road into the tree. The bitumen surface of the road was good and was flat in its relevant section.
40 The defendant submits that it is nothing more than speculation as to what caused the bike to leave the roadway, and that as the plaintiff has not established a cause he therefore cannot prove negligence. Further, the defendant says that the principle of res ipsa loquitur has no application because the fact of the bike leaving a roadway and striking a tree is not an occurrence of such a kind that in ordinary human experience would not occur without negligence on the part of the rider.
41 As to the first part of the submission, reliance was placed on Constable Leary's evidence which I have set out above at [27] and [28]. Possible causes of the accident included the plaintiff suddenly changing his position on the bike causing an imbalance, and any sudden application of the front brake occasioned by an emergency such as encountering wildlife or another vehicle in front of the bike.
42 As to the res ipsa loquitur principle, Mr Read relied on passages from Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121, and Lafranchi v Transport Accident Commission [2006] VSCA 81; (2006) 14 VR 359. He stressed that in Schellenberg, Gleeson CJ and McHugh J at [25] restated the operation of the principle as involving three propositions, the second of which is that a plaintiff may rely on it where the tribunal of fact concludes that the occurrence was of such a kind that it does not ordinarily occur without negligence. (The other two propositions are that there is an absence of explanation of the occurrence which caused the injury, and that the instrument or agency which caused the injury was under the control of the defendant.) I would point out that along with Gaudron and Kirby JJ, their Honours were at pains to stress that the principle was not a rule of law but merely an application of a permissible reasoning process; a description of a mode of inferential reasoning: see [22] - [24], and Gaudron J at [69]; Kirby J at [105] and [121]. At [31] Gleeson CJ and McHugh J said:
"[W]hile res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or adduced evidence of the cause of the accident. But it does nothing more."
43 In Lafranchi a car had left a roadway and hit a pole. Expert evidence was given on both sides. The issue of the defendant's negligence was whether there had been a sudden unexpected loss of consciousness. At [33] Maxwell P and Neave JA (Mandie AJA agreeing), after referring to a number of cases, said that the decisions cited "do not establish that the RIL principle applies whenever a vehicle crosses to the wrong side of the road, or veers off the road, or in some other way 'ends up where it ought not to be'. This proposition was advanced as if it were a principle of law, such that any judge dealing with a motor vehicle accident of this kind would be constrained by authority to conclude that the principle applied" [original emphasis].
44 Their Honours went on to say that the cases decided no such thing; what they did show was that "in a case where a vehicle ends up off the road, on the wrong side of the road, the RIL principle can apply". Their Honours agreed with the proposition that "the mere fact of losing control of a vehicle can establish negligence on the driver's part - but (it follows) it will not necessarily do so ... Where it applies, the RIL principle assists in the proof of matters of fact."
45 In Lafranchi, the Court held that on the expert evidence, it was shown that accidents of the type under consideration might or might not involve negligence. That being so, the occurrence had not been shown to be of the required kind, and the principle had no application. It is this aspect of Lafranchi upon which the defendant particularly relies. The defendant says that the accident might have involved negligence, but that it may not. However, the evidence in that case was not of evasive action or braking, and the expert opinion was that crashes of that type were characteristically caused by anything ranging from simple distraction to catastrophic loss of consciousness.
46 A useful starting point for the resolution of the issue is the observations of Reid J in Knott v Royal Exchange Assurance [1955] SASR 33, which remain pertinent. At 38 - 39 his Honour said:
"Collisions between vehicles, and between vehicles and pedestrians are so frequent, and the circumstances under which they occur exhibit such a diversity of human conduct, that usually no safe ground for presuming negligence is to be found in the mere happening of an accident occasioned in either of those ways. On the other hand, if a motor car which is being driven along a road suddenly overturns or runs off the road, there is at least ground for saying that the occurrence is unusual, and evidence of negligence may be found in its happening much more readily in the other classes of cases."
47 In this case, the line of travel as shown by the braking mark which commences at the gravel verge is of particular significance. The mark itself commences at a point just before the apex of the corner. Expert evidence is not required to conclude that, allowing for human reaction and mechanical response times, the braking action would have occurred a little distance before the commencement of the mark. Following the line of the roadway to the commencement of the mark shows that the rider had commenced to negotiate the corner but ran too wide as the angle of the corner increased, and basically travelled in a continuation of that line of travel towards the tree. The braking occurred just as the bike was leaving the bitumen surface. If the defendant had been forced to take evasive action for whatever reason, a far more sudden divergence from the previous line of travel would be likely. The line of travel as shown by markings is likely to have been quite different. I think it is more likely that the angle of the line of departure from the roadway is likely to have been more acute.
48 That, at least, is sufficient to put the case in a category of the kind of occurrence which does not ordinarily occur without negligence. That evidence makes the inference of negligence a more likely explanation. It is more consistent with negligence than with an innocent cause. Whatever the precise cause of the defendant running off the roadway, whether it be inattention, speed, or merely a failure to properly control the bike, or any combination, I am satisfied that it was negligently managed and that the defendant's negligence caused the accident. I think it is most likely to have been a combination of speed and inattention. At the least, I am satisfied that particulars of negligence (b), (c), (e) and (f) are made out.
49 The first allegation of contributory negligence is that the plaintiff travelled on the bike without wearing a crash helmet so as to unnecessarily expose himself to injury. The principal remaining allegations of contributory negligence are of travelling on the bike when the plaintiff knew or ought to have known that it was unsafe in the circumstances, and of failing to alight from the bike at a time before the accident. The "circumstances" are said to include the consumption of alcohol by both plaintiff and defendant, the nature and state of the road, the purpose of the journey, and the plaintiff's lack of experience as a pillion passenger.
50 I will deal firstly with the discrete ground of the failure to wear a helmet. It is an allegation of failure to do something which may have lessened the severity of injury. It was an issue on which the defendant called no evidence and was not one which was enthusiastically pursued in closing submissions. The defendant needs to establish that there is a causative link between the failure to wear a helmet and a particular injury, or a particular degree of severity of injury. In addition to the spinal injury, the plaintiff suffered a closed head injury. External head injuries were predominantly to his face. There is evidence of some cognitive deficits arising from the head injury. A clinical psychologist, Dr Jennifer Nichols, described different mechanisms of closed head injury in which the brain hits the front and back of the skull interior, or rotates on its stem. This causes bruising and possibly long term cognitive deficits. Dr Nichols said that such deficits in the plaintiff could be explained by a closed head injury.
51 In the defendant's case, some documents were tendered but these were not of a medical nature, and no witnesses were called. After the defendant's case had closed, the plaintiff sought to tender a number of expert statements and reports which had been served by the defendant's solicitors.[1] One of the proofs tendered was from a consultant rehabilitation physician, Dr David Burke. The evidence of both he and Dr Nichols is to the effect that whilst the wearing of a helmet may possibly have prevented or made less serious the closed head injury, it is not possible to be at all precise, and it is quite likely that the plaintiff would have suffered the same degree of injury in any event. This type of issue was discussed in Taylor v Scriven [2007] WASCA 208 at [13] - [15], in which the evidence was that a securely protected head could be less vulnerable to injury than a lesser protected head in a high velocity impact, and that the plaintiff's head injuries were of the type seen with persons wearing securely fastened helmets. Wheeler JA (Pullin and Buss JJA agreeing) at [15] said that on the evidence, although it was possible that the plaintiff's injuries would have been reduced if the helmet had been secured, there was no evidence from which it was open to conclude that such an outcome was probable. Similarly, on the evidence in this case, I am not able to conclude that it is more likely than not that the head injury would not have been caused or would have been of less severity, had the plaintiff been wearing a helmet.
52 As to the remaining allegations, the defendant argues that the journey undertaken by the pair was no more than a joy ride; other than that, it had no purpose. On the evidence of both the plaintiff and of Mr Bates as to what occurred the night before, and of Mr Bates as to the particular night, I am satisfied that both the plaintiff and the defendant had been drinking in a period not too long before they set off. Assuming the carton contained 24 stubbies and that the completed carton had been shared equally between three, each of the plaintiff and the defendant had consumed eight stubbies. Mr Bates' evidence would allow a finding to that specific effect, but at the least, I am satisfied that the defendant had drunk more than a negligible amount; at least several stubbies. There was no evidence about how either the plaintiff or the defendant appeared to be just before they set off, and there was no expert evidence as to the effects of drinking. However, in terms of contributory negligence, I think that a reasonable person would or ought be aware that someone who has had at least several drinks of alcohol may be less well equipped to manage a motor cycle on roadway with a pillion passenger on board, than one who has not. In this context, account should be taken of the nature of the roads around White Beach, the time of day and the weather. All were factors known to the plaintiff.
53 I think of considerable importance in looking at this question, is the reaction of Mr Bates. His immediate reaction was that the two setting off on the bike was "wrong". He specifically mentioned the lack of safety gear, but he also said that he felt "everything was unsafe". His feelings were strong enough to prompt him to immediately follow the pair in the plaintiff's motor vehicle, even though he himself had been drinking. Having caught up with them he told them to return to the shack. Although there was no warning in any specific terms, Mr Bates' action ought to have alerted the plaintiff to the risks of what he and the defendant were doing. This sort of situation was considered in Holden v Robertson (1987) 6 MVR 468. A warning had been given to a prospective pillion passenger by an off-duty police officer that he and the rider should not be riding the motor cycle because they had been drinking. At 476 Asche CJ said that "once the constable had spoken the plaintiff was on notice and should have more closely examined the defendant or more carefully thought about continuing with him and should not have continued. In doing so he was careless of his own safety".
54 After being spoken to by Mr Bates, the plaintiff could have quite easily walked back to the shack. A less safe option, but perhaps one less unsafe than continuing on with the defendant, was to get in the car with Mr Bates. In any event, I am of the opinion that a person of ordinary prudence would not have gone riding on the motor cycle with the defendant in all of the circumstances. That is more acutely so after Mr Bates had spoken to the pair. The plaintiff has unreasonably exposed himself to a risk of injury. The risk was in part caused by the reduced capabilities of the defendant because he had been drinking. I find that the plaintiff was in breach of the duty to take care of himself and thereby contributed to his injuries.
55 What needs to be considered are the comparative degrees of responsibility. The exercise is to assess the degree of departure from the standard of care of the reasonable person, and of the relevant importance of the acts of the parties in causing the damage. I have expressed my view as to the likely immediate cause of the bike leaving the roadway. On the basis that the plaintiff was negligent in going on, and continuing with the ride with the defendant in the circumstances, and making, as best one can, a comparison of the respective departures from the relevant duties of care, I think it is just as between the parties that the plaintiff be held liable for his own injuries to the extent of 30 per cent.
56 I will set out the material relevant to the plaintiff's pre-accident state, followed by an overview of the injuries suffered, their immediate treatment and broad long term consequences. I will then deal with the plaintiff's post-accident state and a number of issues which deal with the assessment process in the broad. All of the facts stated are my findings unless it is otherwise explicitly or impliedly clear. After this section I will turn to the individual heads of damages claimed.
57 The plaintiff's date of birth is 13 October 1983. Up until about grade 8 he lived with his parents and younger sister in Canberra before moving to Hobart. He finished year 12 and had enrolled in an economics degree course at the University of Tasmania. He was due to start at the commencement of the academic year in 2002, but the accident intervened. I will later discuss greater detail of his performance in college subjects.
58 Both his parents had been in the RAAF, his father having been in that service for about 20 years. The plaintiff said that since he was a child he was interested in joining the defence force in one capacity or another. In September 2001, he made application to join the Australian Defence Force Academy (ADFA) in Canberra with a view to being an Army helicopter pilot. At the time he was on medication for acne. He said that he was told his application would not be considered until he had not been using the medication for a period of six months. He decided to stay on the medication. Although he enrolled in the economics degree course, he still had a desire to become an Army officer. He said he wanted to be a pilot, but if that was not an option then he would have been happy "doing fairly much any other job". At the beginning of 2002 his intention was to pursue his university education and to apply to join the Army Reserve when he could.
59 Apart from his acne, his health was good and he was physically very active. As previously mentioned he played soccer, a sport in which he was particularly interested and at which he seemed to excel. He was playing in senior divisions from a young age, making the A grade men's team on a full time basis when he was 17, having had some experience in that division from when he was 14. The season which finished immediately before his accident, was his first full season with the senior team, he being the second highest goal scorer for the club. He started competing when he was in primary school. Before moving from Canberra, he and a friend, when they were in their early teens, coached an under 7s soccer team which he described as one of the highlights of his life thus far. He said he enjoyed very much looking after them and teaching them how to play soccer. His parents were very supportive of him in his pursuit of soccer. When asked whether he intended to continue playing into the future, he said that it was his dream to play: "I've always played soccer, it's always been my one love and ever since I was five, and I just play it all the time, ...".
60 In addition, he refereed soccer games from about the age of 14, often doing several games at a weekend, as well as playing in a game. He also represented his college in athletic carnivals in the two years he was there. The triple jump was his speciality. In addition, he played badminton in a mixed college team in years 11 and 12. He said that when he was at school he had a lot of female friends; he was "very social with the other sex", but that he had not had sexual intercourse before the accident. He said he had some good friends, with a circle of male friends, and a circle of female friends who would get together every lunch time and go to parties; "we were all hanging out together". He was asked about his thoughts of getting married. He said:
"It was always - always been, you know, a dream of mine, ... that you know one of my - one of my dreams has always been to, you know, get married, have kids and teach them how to play soccer just like - well not like my dad, he couldn't play soccer, he was terrible, but you know, hopefully do that."
61 The plaintiff arrived at the Royal Hobart Hospital at about 2am on 9 January 2002. Many and varied investigatory scans and procedures were carried out. In the ICU he was intubated, ventilated and sedated, catheterised and placed in a drug-induced coma. On 11 January he was transferred by air ambulance to the Austin Hospital in Melbourne. Further diagnostic scans and investigations were undertaken. The predominant injuries were as follows:
62 The treatment he received at the Austin Hospital was extensive, and his time there was a very painful and traumatic one. A tracheotomy was performed on 14 January 2002. On 19 January 2002 corrective facial surgery was performed which involved an open reduction and internal fixation of the various fractures. Titanium plates were inserted above the right eye socket and into both cheekbones, with the jaw being wired. Two days later, he underwent major spinal surgery. This is described as an L1 corpectcomy and T12 - L2 fusion with Kaneda implants, titanium mesh cage and a rib and local bone graft. This involved removing the crushed body of L1 vertebra and replacing it with a titanium mesh cage filled with bone taken from the left tenth rib and the body of the L1 vertebra. T12 and L2 vertebrae were used fused together with a side implant and screwed into place. A postero-lateral T-T5 fusion was also carried out. Screws were placed into the pedicles on each side of the vertebrae and joined on by rods.
63 While those procedures were carried out, a feeding tube was inserted through the abdominal wall into the stomach. On 27 January the plaintiff was moved from ICU to a ward. It was a few days later when the tracheotomy tube was removed and the plaintiff was first able to gain a full understanding of what had occurred, and to talk to his mother about it. His first reaction was that he was "fucked" because he could not play soccer, although as he explained it in his evidence, "But then that was the least of my worries ...". He had a lot of periods when he was depressed after finding out about his condition. He cried a lot and had nightmares.
64 His time at the Austin Hospital until late March 2002, and then at Royal Talbot until coming home on 10 July 2002, involved intensive recuperative and rehabilitative processes. The daily routine at the Royal Talbot consisted of physiotherapy and occupational therapy. Essentially, the training was directed to achieving a high level of independence. Included in the instruction were issues relating to showering, toileting, wheelchair skills, and cooking and other domestic skills.
65 His six months spent at the two hospitals was marked by a number of severe and ongoing complications, the principal of which were:
66 In short summary, the plaintiff is an incomplete mid-level paraplegic, the "incomplete" referring to the fact that he has some sensory function and some motor function in his lower limbs, but not to any great practical effect. He has an acquired brain injury with some cognitive impairment as a result, and with a loss of sense of smell and mostly of taste. He suffers bowel and urinary incontinence and loss of sexual function. The evidence is that his life expectancy has been reduced by approximately 10 per cent. There is potential for physical deterioration and an increase in the levels of functional impairment. He has a full insight into his disabilities and appreciation of the loss which he has suffered.
The plaintiff after the accident - the injuries and their consequences
67 When the plaintiff returned to his home in Lenah Valley, his time was mainly taken up with physiotherapy. He had been introduced to wheelchair tennis at Royal Talbot, and that became a regular part of his regime. Modifications were required to the Lenah Valley home. These included a new bathroom, a new bed and wardrobe, new heating, and carport extension to accommodate the movement of his wheelchair.
68 Although regularly occupied with therapy programs, the plaintiff said that he was bored and decided to re-enrol for the economics degree course. He started at the University of Tasmania in 2003, but soon struck difficulties. His problems with incontinence frequently led him to be late for lectures, and on one occasion, to miss a test. His absence of sense of smell means that he is not able to readily detect when he has fouled himself, and the embarrassment level is high. Furthermore, he found difficulties in maintaining his concentration. He found that he was not able to learn what he studied. He felt isolated and depressed. He managed to survive in the course through to the end of 2005 but was then excluded. After successfully appealing his exclusion, he was reinstated on a reduced workload, but was required to pass a number of subjects in 2006. This he failed to do, and at the end of the first semester in 2006, having lost his motivation, he did not re-enrol. He says that but for his injuries he thinks he would have been able to successfully obtain his degree. He found the facilities for disabled people somewhat lacking, and struggled to cope generally.
69 In 2005, the family moved home to a place in Rosetta where they still live. The plaintiff was having arguments with his father who was significantly suffering from a work-related back injury. They found a house with a self-contained flat underneath in which the plaintiff now lives. His mother does most of his domestic chores for him. He mostly has his evening meal with the family, negotiating a rather tricky course around the front of the house to get there, and a steep descent at the back to return. He wishes to live independently.
70 In December 2007, the plaintiff was able to find employment with a financial institution, having sought the assistance of the Commonwealth Department of Education, Employment and Workplace Relations. He said he was actively playing tennis and needed the money. It was negotiated that he start on a part time basis, but after a few months, he was required to work full time due to a merger with another organisation. He has now completed two TAFE courses, a Certificate II in Business, and a Certificate III in Financial Services. He is still employed on a full time basis, working from 8.30am to 5pm, but would like to reduce his hours.
71 The plaintiff's level of independence is much higher because of his ability to drive. After some initial difficulties with approval from an occupational therapist - which seem to have been resolved by the provision of a report from a neuropsychologist - he was able to obtain the relevant driver's licence. This was about two years after he came home. His pre-accident vehicle was of no use, and he got another vehicle which was modified for his use. That is now of some age and well worn. The family vehicle has also been modified for his use, because of difficulties he was having getting in and out of his own, particularly when manoeuvring his wheelchair tennis equipment.
72 The incomplete paraplegia means that the plaintiff has full sensation down to his nipples, with patchy sensation to his abdomen. From that point, he describes it as "just pins and needles until about half way down my shins and I can't feel my feet at all". On his back, the patchy sensation starts at about shoulder level. He has some movement in the quadricep muscles in his legs, but nothing of any real effect. He is able to shuffle or fidget around on his seat, which is a little fortunate because the partial feeling in his buttocks means that he gets a burning sensation when he sits all day. Scoliosis is present in his spine, causing him to lean slightly to the left.
73 He has had pressure sores. One developed on his sacrum while he was in the Austin Hospital. Shortly after he returned home, his mother discovered one on his right heel, and in 2008 one developed on his right buttock which he had to ask his mother to investigate and confirm. These sores have to be cleaned and dressed, the last one requiring a few visits to the general practitioner over a period of about a month. The plaintiff said that he checks nearly every day as far as he is able with the use of a mirror.
74 In terms of cognitive deficits, the plaintiff says that when he is under stress and he is required to learn new things, he does not learn as fast as he used to. Previously, he could comprehend things with one reading, but it now requires a lot more work for him. He said that he was not a slow learner, but that is what is now happening. The plaintiff's mother, Mrs Lee Potts, gave evidence that his short term memory was bad when he was in hospital, and although it had improved somewhat, "it takes him longer - you used to only have to tell Josh something once and that was it; now ... he takes a bit longer to remember some things, not everything, but some things."
75 The facial injuries caused the loss of the sense of smell and most of that of taste. He is able to taste things which are strongly salty, spicy or sour, but otherwise if things are bland, he cannot taste them and has no interest in eating them. He misses these abilities, and said that this loss is a lot worse than it seems. He often does not finish meals.
76 I have already mentioned the spasms in the upper part of the backs of his legs. They are a constant part of his life. They occur daily, almost always in the morning, but sometimes at night as well, and they are also less severe. This is notwithstanding that he takes the maximum dose of baclofen. He has had Botox injections and intensive stretching, but the spasms continue. In the morning, the spasms occur when he gets in the shower and is prepared for them. They dissipate after between 5 to 15 seconds. The plaintiff said that his body below the level of the lesion does not seem to sweat and cannot properly self-regulate its temperature; the spasms are even more frequent when it is cold. The cold "really affects" him.
77 As I mentioned before, the plaintiff has to self-catheterise in order to urinate. When and how he does this depends on his intended activity. Ordinarily, he carries out the procedure about four to six times a day, depending on how much he has been drinking. The catheter is inserted and he is able to discharge the urine directly into a toilet. He does not have sufficient feeling to enable him to detect the need to urinate. He gets a sensation like a full stomach, but generally just attempts to judge things. He suffers from urinary incontinence which means that he "leaks" between 20 to 100mls a day, again depending on how much he has been drinking and the number of times he has voided his bladder. This can cause embarrassing wet patches on his clothes and is particularly bad if he is playing tennis without the in-dwelling catheter.
78 An alternative means of urination is by means of an in-dwelling or, as he called it, "a semi-permanent" catheter. It is one which is put in place and connected to a bag which in turn is attached to his leg. This type constantly drains, and it is a question of feeling it to see how full the bag is. He is able to use an "able bodied" toilet to empty the bag. He said that he uses this catheter about once a week, mostly when he is going out with friends, and having a few drinks He also uses one when he is playing wheelchair tennis. There is a surgical procedure available to remedy the urinary incontinence, and which involves the installation of an "artificial sphincter". Essentially, it is an air inflated device which closes off the urethra, and when released allows urine to pass. The plaintiff said that he would like to undergo that procedure. He approached the MAIB for the funds for this procedure, but as his entitlements had expired, it would not accommodate him.
79 Constipation is a continuing problem. He regularly takes Senokot, a brand name for a natural product of the senna herb. The plaintiff has to evacuate his bowels by a direct manual process. This involves him massaging his abdomen and stimulating his rectum by digital penetration using a rubber glove and gel. Ordinarily, he does this every second day, but maintaining a balance between constipation and uncontrollable diarrhoea seems to be a constant battle. He has little feeling for when he needs to evacuate his bowels. By palpation, he can roughly assess, as he put it, "that at some time today either I'm going to have an accident or I've got to go to the bathroom". He said that sometimes he becomes paranoid and feels himself by putting his hand under his buttocks every 20 minutes or so. He finds this to be very embarrassing when he is at work, and often ties to disguise what he is doing as a readjustment of his clothing and the like.
80 When he has diarrhoea he sometimes has bad accidents which result in soiled clothing and he needs to go home, shower and change. This can happen at any time. If in bed at home during the night, he enlists his mother's help. Obviously, these incidents can cause significant disruption. On one occasion when he was in Melbourne playing tennis, an extremely bad episode of diarrhoea prevented him from going to a dinner, and took a considerable clean-up effort on the part of him and his mother. Mrs Potts gave evidence of three occasions on which she had to rescue him from university after bowel accidents, and two such occasions when he has been working at MyState. There are of course degrees of bowel accidents. The two most extreme events are the evacuation of the faecal matter, and the more extreme form of actual diarrhoea. Mostly, and fortunately as the plaintiff said, the bowel accidents occur at home. With this problem also, there is a surgical procedure available, called an ileostomy. It involves taking the small bowel to an external opening in the abdomen where the contents are collected in a bag attached to the abdominal wall. The bag is simply emptied once or twice a day. He does not presently wish to have this procedure done.
81 The plaintiff is not able to obtain a full erection and to have normal sexual intercourse. Rather than attempt to accurately summarise his evidence as to the situation and his experiences, it is best if I allow him to explain it for himself. His evidence was as follows:
"Can you have sexual intercourse?......Um, my ability to get an erection is gone. I can get a - I can get a semi-erection, but it's not, not useful enough to - to do anything with. It's not - it's not even - it's not hard enough, it's not just - there's no - I just can't, I can't do anything it's that embarrassing. And there's been that many times when I have, you know, met a girl and wanted to go home with her and it's just that embarrassing, I've got to come up with an excuse as to why, you know, she'll invite me home and I've to come up with an excuse as to why that's not a good idea and I'll go home by myself.
Have you tried means by which you can achieve a harder erection? I've tried everything under the sun. I have,... I started off with, you know, the tablets, so I've tried Viagra and Cialis, we tried that, and they had - all that I would get out of that was a semi erection for 24 to 48 hours, it was just no point to it at all. And then I went along and had - after that, ... trying every dose of that from the smallest to the highest, we went along to see a guy ... at the Royal who's a nurse there who deals with those areas, and he has the injections, or Caverject, and I'm not sure what the other - the other type one that only - so Caverject was no good and I tried from the lowest dose to the highest dose. I had a long partner, this was back early to my accident, I had a long term partner who was very forgiving with me and ... I tried every injection from the lowest to the highest and it didn't do it, so the guy even said - put me on this other drug which he said they don't even use in paraplegics anymore because it had the problem of giving people erections for too long so they were having to come into hospital to get rid of them and I had that one and there was still - from the lowest to highest and there was still no effect so then I moved onto what's called the penis pump. So I've used that one with very limited success in that, you know, you get - you get an erection out of it but you get a big - it takes about - it took about forty five minutes to get an erection that way and that time of just pumping the thing and in that time all romance has definitely gone and - and at the end of it you end up with an erection that is blue and red and looks like it's bruised and it's not - not very attractive at all, and then - and then whilst we were having intercourse, ... that was all well and good, but within about - it was only about two minutes, if even that, that the ring that was holding all the blood around the penis, because of the motions and the movement it just - it moved and the blood flowed and the erection had gone down to a level that it was no longer sufficient, but it wasn't - it didn't go down far enough that it was - that we were able to get the ring off, so we then spent another thirty minutes trying to get the ring off. So we had like an hour and a half, or an hour and fifteen or whatever it is, and for two minutes of intercourse and so that didn't get tried very often because it was that frustrating and my - my penis looked extremely - looked bruised for the next two, three days and it was just - it didn't look good when I was in the shower at all.
All right, thank you for that. Can you ejaculate?......The irony there, yes, I can, but I can't even get an erection so I don't know how that works, but it's a semi - semi erection and I can, but you know with stimulation, but it's - I don't understand why.
And do you have any feeling when you ejaculate?......I get - I get some sort of feeling but it's not - it's not the same, it's obviously a different - different feeling, it's - it sends my spasms - I do spasm when I'm doing it and it's not - it's not the most pleasant thing but it's not the most unpleasant either, so it's sort of a - I'm not sure what the feeling is, but -"
82 As to this disability, he has discussed with a urologist an option of a permanent penile implant. This involves an inflatable tube inserted down the side of the penis, with a small balloon-like device in the scrotum. It makes the penis air inflatable. He has expressed an interest in having the procedure but said that he wanted a partner to discuss it with at the relevant time, because it was a serious step and there were some complications. He has not yet discussed the issue with his recently found partner.
83 Not surprisingly, the plaintiff has suffered bouts of depression, and continues to suffer general anxiety and panic attacks. He generally cries more often, saying in evidence that he feels he has lost control of his emotions. He has moments of acute embarrassment, and also moments of annoyance when people ask him what happened, challenge his level of disability, or show a prurient interest in his sex life.
84 In 2003 he took antidepressant medication for a while but found the side effects difficult to deal with. Sometimes he gets worried and distressed, particularly about how things might unfold in the future. For a time he had panic attacks lasting for about 20 or 30 seconds. Those attacks continue, but to a much lesser degree. He has "moments" during which he gets deeply distressed at his loss and cries. He often has "negative thoughts" about embarrassing moments in the past with his incontinence problems, and generally about what the future might hold. He explained this as follows:
"I think about what's going to happen in the future. I think about, you know, what possibly can and can't happen. What, you know, what if such, you know, what if - I just think about the future and I can get just down on that. And I think about what I would have been doing when, you know, there will be some - I'll be like, 'Oh, I would love to have done that', and then the next minute I'll be down. I don't always - I don't always cry but I can get quite, you know, feel - get quite a few feelings of depression and it brings my mood down and that happens, you know, reasonably regularly but I am coping with it at the moment."
85 The plaintiff's body is considerably scarred due to the surgical procedures, although he does not seem to be overly concerned at the disfigurement. The major scar runs from the lower right abdomen at an angle upwards across the left lower rib area and up to a point at about mid-spine level, halfway between his side and the spine itself. There are very obvious suture marks. There is also a vertical surgical scar starting at the base of his neck and finishing just below shoulder blade level straight down the line of the spine.
86 The plaintiff is able to get himself out of bed in the morning, and by use of the wheelchair, make his way to the modified shower. He showers whilst seated, puts himself back in the wheelchair and then dresses himself. The dressing exercise he finds to be extremely difficult. He is able to put himself into his vehicle, and then dismantles the wheelchair and stows it in the car. This is a rather arduous process which I saw him perform by way of a view, at his home. When he goes to work, the reverse wheelchair process happens when he reaches his car park, and of course the reverse two procedures occur at the end of the working day. He says that he is "just buggered" when he gets home from work, and normally has a sleep before dinner. His mother cooks his dinner for him, but on occasions when she is away, he fends for himself. He says however that on those occasions he tends to sleep when he gets home, eats later, and less well. He goes upstairs for his dinner; if it is raining his mother brings the meal to him. The kitchen facilities in the flat are not entirely suitable for people with his disabilities.
87 When spending time in the flat, the plaintiff needs to be careful about temperature control. He has four panel heaters in order to heat up the entire area. There is a difficulty with his body self-regulating temperature. He is seriously affected by cold. He is generally a lot more uncomfortable when cold, and when he gets cold, he suffers more spasms.
88 His mother helps him when he has soiling accidents through diarrhoea. She does all his washing and makes his bed. There are no laundry facilities in his present flat. The plaintiff gave evidence that he wanted to move out of the flat when financially able to do so. He was asked what issues he thought were important in making him want to move out. He replied:
"The independence. I want privacy from my parents. They're upstairs, they're on their own, but they still - still too close to live to your parents. You know, the - I just want a place of my own. I want to you know look after myself. I just want to be independent and, you know, while I appreciate everything my Mum does for me, I wouldn't - yeah, I do want to do it - go out and live by myself. That's what I've, you know, I've always wanted to do. I didn't see myself at - what am I, 27 - and living at home."
89 There are things which he would be able to do if he lived independently, and things which he could not do. He is capable of looking after himself personally to the extent already discussed. With suitable facilities he would be able to cook and prepare meals. He can look after his feet - for instance clipping toenails - but does suffer minor injuries to his feet. He says these are things for which he should go to a podiatrist "but I don't have time to at the moment".
90 Although the plaintiff said that he could not do normal garden maintenance, he said that he would like to have a house with a little bit of garden so that he had some space between him and the neighbours. He thinks he would struggle putting the rubbish bin out. He cannot do that at his present because of the slope of the driveway. He thinks he would generally struggle with the task. Depending of course on height, he says that because of his long arms, he can reach to the back of things such as fridges and cupboards, but generally finds vacuuming and cleaning floors difficult. He said he tried vacuuming but when he pushes the cleaner one way, his wheelchair goes the other. It is the same with mopping. He cannot see himself changing the bed linen; "in fact it would be a great difficulty".
91 As far as shopping is concerned, he has done trips to the supermarket for a small number of items. He has tried to push a supermarket trolley but, I infer, it was too much for him. He said he would not be able to do a family's grocery shopping.
92 Generally, the plaintiff said that he valued his independence very highly, that he craved independence from his mother, and was a person who wanted to get on with things in life. In her evidence, Mrs Potts confirmed the domestic chores which she did for the plaintiff. She thoroughly cleans the flat once a week, which includes vacuuming and washing the floors, scrubbing the bathroom and trying to remove marks from the walls left by the wheelchair. She cooks for him every evening and makes his bed on a daily basis. She changes the bedding and does all his washing and ironing. Occasionally she vacuums his car.
93 The plaintiff presently works in the Retail Service and Support section of MyState Financial, which is a "call centre" type environment. His daily tasks include dealing with direct debit issues such as where the authority has been cancelled, the wrong name has been used, etc, setting up periodic transfer payments, resolving ATM disputes and other issues, dealing with stopped cheques and generally, as he described it, acting as "a help desk for the branches". The internal level at which he works is described as "entry level", but the manager of the section, Ms Tracey Walker, said that he was very competent in the role which he performed. "It's a repetitive task, so he - the work flow itself is the same on each occasion, so he performs that to a high standard. ... He works very well with the colleagues that he has in his team, so he's a very good team player and gets on very well with his team members."
94 In his evidence, the plaintiff was asked whether he thought he could continue to work in this job full time, or whether he was finding it too demanding in the physical sense. He said that he thought at some time he was going to wear out because he was already wearing out. He gave an instance of not long beforehand being run down to the extent that he got shingles and was having heart palpitations. He thought that working full time did take its toll. It was very difficult for him to work full time and fit in the medical and physiotherapy appointments which he needed. He could not see himself working full time for long in the future. Ms Walker said that they had noticed that he tires during the day. He took longer to do things such as going to the fax machine, and his tone of voice tended to plateau to the extent that his hours on the customer 'phone line had to be limited.
95 When asked as to how he would cope living independently and at the same time working full time, he said that he could not see that he would be able to do both; that is, do all the things necessary to look after himself and to work full time. He more saw himself working on a part time basis. He pointed out that that is what he had originally applied for and the basis on which he had started. Ideally he would like to work part time, in the order of three days a week. He did not see reduced hours per day as an option, preferring the notion of three full days. In cross-examination, he agreed that he was a very social person and that his work helped satisfy his social needs. Indeed that was where he had met his current female partner. I will return to aspects of the plaintiff's work at MyState when dealing with the claim for loss of earning capacity.
96 Before the accident, there was of course, the plaintiff's keen interest in soccer. He played at a high level of competition. He now maintains an interest but it seems restricted to watching English Premier League on television. He was interested in camping and going to the beach. He was always outdoors, hardly spending any time indoors at all. He said that he missed the outdoor life; he does his best to cope, "but it's difficult". He did however acknowledge that wheelchairs with large balloon tyres are available to enable access to sandy areas such as beaches, and to uneven terrain.
97 The plaintiff plays wheelchair tennis twice a week. He plays in an able-bodied pennant competition on Thursdays, and then practices with a tennis coach on the weekends. He has to play in an able-bodied competition because there are no longer any wheelchair tennis competitions as such in Tasmania. (The rules are modified for him in the able-bodied competition.) He travels to mainland Australia as many times as he can manage given his work commitments, to play in wheelchair tennis tournaments. These tournaments closely follow the able-bodied tournaments, so where there is a major tennis tournament, there is a parallel wheelchair tennis event. He has played in the Australian Open - three or four times - and the Victorian Open in Melbourne, in the Sydney International, and in competitions in parts of regional Australia. The parallel tournament situation exists elsewhere in the world; for instance, there are US Open and French Open wheelchair tournaments. He was the recipient of a State encouragement award for young sportspersons.
98 He enjoys the game a great deal. He says that he is a very competitive person and wheelchair tennis is his outlet; "that's all I'm getting". He wants to continue to compete as he loves doing it. He has played against men who have gone on to compete in the Paralympics, and that is obviously an ambition. Longevity in wheelchair tennis is better than in the able-bodied game. The major reason for that is that the wheelchair athletes are not exposed to the stress and strain on the knees. He gave an instance of the Australian No 1 player who was playing well into his thirties and his now nearly 40. His world ranking at the time of the trial was 243. He said that one can compete internationally as an individual, provided the resources are available, and he said that it was one of his dreams to play in Europe.
99 For a short time, the plaintiff also played wheelchair basketball. This led to his involvement in an organisation called The Glenorchy Youth Taskforce. He was contacted because of his sport involvement. The organisation's aim is to help under privileged and disadvantaged youth, designed to involve them in community-based activities and advance general skill levels. He was involved in this program from the end of 2006, but his work now prevents him from doing much, although he maintains contact. Gymnasium activities are something which he did in the past and has an interest in pursuing in the future. He went to the gym for a while, but had a bowel accident and became very self-conscious. At about the same time the benefits payable to him expired and he did not have the money to pay for it himself. He got enjoyment and benefit from it, but does not think it would be practicable to consider going to the gym on a regular basis whilst he is in full time work. If he were working part time, it is something that he thinks he would resume; "I did enjoy being there and I would think that hopefully it would have the added effect of increasing my fitness, but you know, I'm not sure, I'd hope so."
100 Going out with friends to hotels and restaurants is a regular event, although whether it is weekly or less frequently is not clear. Obviously there are some difficulties in going to some places more than others, depending upon access and facilities. The plaintiff said that he sometimes goes to the Casino and to a hotel at Glenorchy, he thinks he may have been to the Casino on weeknights. Sometimes he goes to social events with his old soccer club, although he does not have much involvement at all with his previous soccer friends.
101 As mentioned in the course of his evidence about sexual dysfunction which I have set out, the plaintiff had a long term girlfriend, the relationship with whom started in about mid-2004 and lasted for about 10 months. She was his first girlfriend and he ended the relationship, acknowledging that he "sort of pushed her away and wanted to see other people". Some time later, he met another girl who lived in Launceston. She came to Hobart and stayed with him for a few nights each week. This went on for about two months until he suffered bowel incontinence when they were in bed together. He said that she broke off the relationship the next day. As at the time of the trial, he had developed a relationship with a girl with whom he worked. They were good friends for a while and "decided to take that to the next level and things are going all right at the moment."
102 He has sought advice about what would be necessary in the future for him to father children. He saw an IVF specialist. There is a high degree of probability that his sperm count has dropped because of his injuries, but the IVF process would be available to him now or later. He said that he would be prepared to undergo the processes to ensure a pregnancy of his partner, were he to be in a relationship where both wanted to have children. He said that if this was the only option then that is what he would do. He confirmed in cross-examination that he held a real desire to enter into a loving and sharing relationship which might lead to a family.
103 At the time of coming home from Royal Talbot and within a short time afterwards, the plaintiff was taking baclofen for the leg muscle spasms, Senokot for constipation and an antidepressant. He was also required to take Macrodantin from time to time for recurring urinary tract infections, and oxybutynin in attempted mitigation of urinary incontinence. Presently, he takes the baclofen, the Macrodantin from time to time as the urinary tract infections persist, two paracetamol tablets a night, and the Senokot.
104 There was little controversy about the essential medical evidence. Cross-examination was more directed to eliciting information, than mounting a challenge. Except where otherwise apparent, I accept what follows. The first witness with whom I will deal is Associate Professor Douglas Brown. He is the Director of the Victorian Spinal Cord Service at Austin Health which includes the Austin Hospital and Royal Talbot. Professor Brown was the senior specialist in charge of the plaintiff's treatment at those two centres. His examination-in-chief consisted of twelve letters and reports ranging from October 2002 to June 2010, mostly to the plaintiff's solicitors. The bulk of what I see to be the relevant material comes from a letter of 18 December 2006, supplemented by two subsequent responses to particular inquiries. Professor Brown addressed a number of issues concerning the plaintiff's future medical condition and treatment, his present and immediate future needs for care, and the need for longer term and aged care.
105 Professor Brown's views as to future medical treatment are that the plaintiff requires optimum care, but even with optimum care, problems can develop. The most common of these are pressure sores, in which he includes burns, cuts, or other skin damage. Many of these can be treated early with minimum disruption, but if allowed to progress to become serious pressure sores, hospitalisation may be required. Healing of even a minor pressure sore area can take between two weeks and three months.
106 The damaged spinal cord often heals with a small fluid filled cyst at the area of nerve cell loss. In up to 2 per cent of patients the cyst may expand during their lifetime to cause further neurological damage. Surgical treatment is required in the form of drainage of the cyst. As to this spinal cyst, or "post-traumatic syrinx", Professor Brown explained that the problem occurs when the cyst expands up inside the spinal cord. The normal part of the cord will suffer damage and lose function. The higher the level of the original damage, the greater the implications this has. He disagreed that it would most commonly occur in the first five to ten years post-injury, saying it was completely unpredictable but that it involved a relatively small percentage of spinal cord injuries in any event.
107 The plaintiff's current method of bladder emptying is optimum, and he should suffer few urinary tract infections providing that his catheterisation technique is good. When the chance of infection in the bladder is reduced, the chance of infection ascending to the kidneys is also reduced. Nevertheless, the plaintiff is at risk of recurrent urinary tract infections beyond that experienced by the general population. With prompt treatment of these in an optimal fashion, it is unlikely that there will be long-term detrimental consequences. Generally, prompt treatment of any early problems with his bladder will minimise major complications in the future.
108 Bowel problems tend to become more common with the passage of time, and a number of patients develop severe bowel dysfunction after 10 years of spinal cord injury. Treatment for this level of dysfunction is the ileostomy. This is a very satisfactory treatment for chronic and severe bowel dysfunction, but there are some surgical risks. The incidence of patients with long-term spinal cord injury having an ileostomy is quite small - in the order of 1 - 2 per cent.
109 The risk of depression and other psychological sequelae is a very individualised matter. The plaintiff has not shown any particular tendency to this. Functioning in the community can be more difficult psychologically from a wheelchair base, where other members of the community do not know how to interact appropriately with someone who is different in an obvious way, and this can have a psychological impact. The plaintiff has proved he has the resilience to handle such situations. Generally, there is no evidence that the plaintiff is at particular risk in this area.
110 Because of the plaintiff's high level of paraplegia, he has significant problems with balance in the wheelchair, and therefore difficulties undertaking a number of tasks where control of body posture is important. Many domestic activities are difficult or impossible for someone of his level of injury from a wheelchair base. The upper arms, trunk, head and neck work extremely hard to undertake normal activities in a day. There is little or no reserve in upper body musculature for additional activity. He tires more readily than would be expected for the same task undertaken by someone who is able to spread the work amongst all of the muscles in the body.
111 Daily activities are very tiring, and unless the plaintiff has some assistance with domestic tasks, his ability to undertake study and employment will be affected by physical fatigue. This will become more apparent as he gets older, and by the time he reaches his mid-fifties, he may well benefit from additional attendant care to support him in his everyday activities. Quite commonly, patients at his level, who are between 50 and 60 years old, usually require additional assistance, particularly in the morning. He will experience additional wear and tear around his shoulder girdle, with possible degeneration of tendons around the shoulder joints and the early development of arthritis of the shoulders. The a real possibility of this degeneration of the tendons and joints due to overuse of the shoulders.
112 In Professor Brown's opinion, it could be said with some degree of confidence that spinal cord injury patients can expect to spend as much as two weeks per year, averaged over their remaining life, in hospital or bedridden for the treatment of complications of spinal cord injury involving a range of issues. Because the plaintiff is at risk of complications with urinary tract infections, he will need to see a general practitioner once or twice a year, and should be reviewed annually by someone with experience in the management of spinal cord injury patients. One particular area of potential problems is that related to his bowel care. This tends to become more prolonged and difficult with the passage of time. Generally, he will require annual reviews with particular blood tests, urine tests, ultrasound of his urinary tract, and plain X-ray of his urinary tract. As to his scoliosis, it is likely that it will remain fairly stable because of his age, provided he maintains good posture in the wheelchair. There is a possibility of damaging his urethra with self-catheterisation to the extent that he can no longer continue this method of bladder management. In that case a suprapubic catheter would most likely be the best option.
113 In cross-examination, Professor Brown said that skin care is an ongoing problem but not one that necessarily confronts paraplegic persons as they age. If care is exercised with the skin, it is unlikely that serious pressure sores will develop. The "sitting ones" are the ones that cause the biggest trouble and they are usually preventable by good cushioning, skin pressure relief and skin checks. He agreed that some preserved sensory function is useful to provide advance warning if it were a pain sensation. He also agreed that when individuals with spinal cord injury suffered shoulder pain, conservative management involved a review of mobility mechanics with a view to modification, but that annual reviews were desirable to look at functioning and mobility strength to avoid attempting to solve the problem at a later stage.
114 Professor Brown agreed that the average age when additional functional assistance was required for a paraplegic person was around 54. By functional assistance he referred to such things as slide board transfers to and from wheelchairs, powered wheelchairs, hoist transfers and similar systems. In terms of a percentage of patients who do not experience functioning difficulties as they get older, he would not agree with the figure being about 80 per cent. He thought it might be higher on the basis that the problems are not reported, as the patients may feel that they are doing well and simply attribute the difficulties to the aging process as such. The effect of his evidence is that it is important to continually monitor the situation and to make changes as and when required, in order to avoid more significant problems later on.
115 A number of succinct propositions were put to him. As to these, Professor Brown:
116 The witness was taken to his estimate of two weeks a year on average being spent in hospital or bedridden. He was asked whether that was not two weeks of each year, but rather "loaded up" towards the end of the person's life. He said that "if it was a pressure sore of course it'll be a longer term, but if you only had one pressure sore in ten years your average would be two weeks a year sort of ... It would tend to be later in life that - with those associated aging features ... that you get into troubles associated with a spinal cord injury". He said that his comments were confined to things relating to the spinal cord injury, and not other things which may affect the population generally, such as diabetes or dementia.
117 Dr Mark Slatyer, a consultant rehabilitation physician, also gave evidence. Dr Slatyer first reviewed the plaintiff in late August 2002, shortly after his return to Hobart from the Royal Talbot. He was involved in the plaintiff's treatment for about two years, and saw him for review in February 2008. Dr Slatyer said that it is likely the plaintiff will maintain his current functional level for most of the remainder of his life. However, some 20 per cent of patients can expect some kind of neurologic decline, included in the causes of which is the post-traumatic syrinx. Other possible problems include an injury to his shoulders such as a rotator cuff injury, or scoliosis. These scenarios could result in the deterioration of his present condition, making him functionally worse off.
118 Dr Slatyer noted that the plaintiff has a scoliosis (a spine curvature), but which had reduced as at March 2008. This needs monitoring with occupational therapy review of his seating. As to the post-traumatic syrinx, Dr Slatyer said there is a 5 per cent possibility of this following a traumatic injury. It can occur at any time from the time of the accident to as late as 20 to 30 years after the injury. He agreed that musculo-skeletal problems, such as premature arthritis, are a possibility. This is particularly so in the shoulders and elbows due to increased use in pushing the wheelchair, and in wheelchair transfers. He said that shoulder joint problems are a very common issue with paraplegics, and that in the plaintiff's case, there is a chance in order of 30 to 50 per cent that his shoulders will deteriorate over time. If that happens, the required level of attendant care "will be significant."
119 Sepsis is a potential hazard arising from not only pressure sores, but also urinary tract infections. Paraplegic patients can become very rapidly seriously ill and these infections must be treated aggressively when they are at an early symptomatic stage. Dr Slatyer also noted the existence of the plaintiff's scoliosis, but in a report in early March 2008 said that it had reduced at that time.
120 Dr Slatyer believed that the plaintiff was maximising positive outcomes by looking after himself particularly well. His full time employment has a most beneficial effect as, in general terms, that enables a spinal cord injury patient to be an engaged, productive member of society, and not focussed solely on the injury. The predominant physical issues to be faced by the plaintiff seem to particularly relate to a predisposition to early onset osteoarthritis in his shoulders and elbows due to increased demands on these joints, and the possibility of a rotator cuff injury which is very common in older and in more active spinal cord patients. Dr Slatyer said that any one of a number of occurrences as noted, could result in the plaintiff requiring a significantly increased amount of care. These situations usually occur in the aging spinal cord injury patient:
"I believe that over the next few years Joshua will have a period during which he has very few problems as long as he looks after himself, maintains his fitness, keeps his weight down and he's active and fully employed."
121 In Dr Slatyer's view, the plaintiff's short term prognosis is excellent, but his long term prognosis is affected by all of these issues. The possibility of his being less active and functionally less able than he is at present, is obvious because of those matters. Dr Slatyer agreed in cross-examination that it was generally true that someone who was intelligent and better able to address management issues, had a brighter outlook.
122 Dr Peter Sharman, a consultant occupational physician, also spoke of the prospects of shoulder degeneration or overuse complications resulting from wheelchair use. He described this as a "very significant risk", and reported that it would be reasonable to allow for difficulties with wheelchair transfers and use from between the ages of 50 and 55. Additional evidence about syringomyelia, the disorder of the development of a syrinx, came from Professor Peter Reilly, a consultant neurosurgeon. He reported that in general, the incidence of symptomatic syringomyelia is around 5 per cent of patients with spinal cord injury. He noted a Swiss study of 449 cases, the results of which were that nearly 5 per cent of paraplegic or tetraplegic patients developed symptoms of post-traumatic syringomyelia, with the mean time of onset of approximately five years. Looking at all of the evidence on these issues, I take the view that there is a high degree of probability of shoulder dysfunction in the plaintiff's early 50's, but a very low degree of likelihood of symptomatic syringomyelia, although it could possibly arise at any time.
123 As to the urological aspects of the injuries, the bulk of the evidence came from Dr Ian Middleton. In an early report Dr Middleton said that the plaintiff had a neurogenic bladder, which required self-catheterisation to empty. There were no demonstrable anatomical abnormalities apart from the paraplegia itself, the possibility therefore being that infections were predominantly being introduced by the catheter. The plaintiff needs to be assiduous with an aseptic technique on catheterisation, the need for which is likely to be permanent.
124 Dr Middleton noted the possibility of a permanent suprapubic catheter, as an option for patients who find self-catheterisation difficult or have ongoing problems with urinary sepsis. This catheter is one inserted into the bladder by an abdominal puncture, and needs to be changed monthly. Further, he said that patients with paraplegia and a neurogenic bladder are susceptible to stones, and in the long term have increased risk of kidney damage and even failure, which may occur secondary to the high bladder pressures that develop in the neurogenic bladder. "If carefully managed and appropriately catheterised, the risk of long term renal impairment is significantly decreased." He said that it is likely that the plaintiff will require long term and perhaps permanent antibiotic prophylaxis.
125 In a report in May 2006, Dr Middleton spoke of the plaintiff's problems with leaking urine and with erectile dysfunction. Subsequent diagnostic studies showed that the incontinence was stress incontinence due to sphincter muscle weakness, rather than urge-related. Dr Middleton later reported that if medication was not successful in controlling the problem, an artificial urinary sphincter (which I have previously described) could be considered. These sphincters last for about 10 years before requiring replacement, although Dr Middleton has at least one patient with the device which has been functioning satisfactorily for over 20 years. If both the sphincter and the penile prosthesis procedures were to be pursued, he would recommend that they be carried out six months apart, with the sphincter inserted first.
126 The life expectancy of the penile prosthesis is about the same as the sphincter. He said that over 20 years he had inserted about half a dozen penile prostheses, and over that period of time, the average replacement time was around 10 years. If one lasted 10 years, that was a good life expectancy. His experience was that men, including able bodied men, who had the prosthesis, replaced them until the day they died; on the other hand, he knew of men who did not use it frequently or at all, and if it failed it would not be replaced. "So the younger the patient, ... the more likely they are to want it replaced if it fails."
127 Dr Donald Moss, a consultant urologist from Ballarat, is the person who does these operations. In a report from 2007, he said that the plaintiff still had some forward ejaculation, but is likely to be infertile in the long term without artificial techniques. He said that because the plaintiff has limited general sensation, the penile prosthesis would not return him to totally normal sexual function, since he would still have incomplete sensory stimulation because of the anaesthesia over his genitalia, but it would enable him to obtain a satisfactory rigid erection for normal vaginal entry.
128 Neuropsychological assessments have been carried out by Dr Jennifer Nichols. These were done in January 2005, August 2006 and December 2006. The results of the 2005 testing are as follows. The plaintiff's verbal, perceptual, working memory and intellectual functioning fell in the high average to superior range and did not represent a deterioration from estimated pre-morbid levels of functioning. In contrast, his processing speed was in the average range, which fell below expected levels of functioning. His language ability was intact, with word finding fluency in the average range. This may represent a mild impairment of verbal fluency possibly due to processing speed deficits. Comprehension, listening skills and reading ability were intact.
129 In terms of memory functioning, the plaintiff was in the high average range for immediate memory. Compared to earlier post-accident testing done by others, there was a significant improvement in the visual immediate memory, with no longer any significant difference between visual immediate and auditory immediate performance. Working memory fell in the superior range. Overall, the plaintiff's memory performance fell between the low average and high average range which was consistent with previous post-accident testing. He continued to demonstrate deficits in processing speed and new verbal learning, compared to predicted pre-morbid levels of functioning. Executive functioning tests showed intact planning and organisation skills. The summary section of the relevant report contains the following:
"It is estimated that his pre-morbid intelligence fell in the high average/superior range. His current results suggest that he has not suffered from any impairment in his intellectual functioning as a result of the motor vehicle accident.
Mr Potts continues to show moderate impairment in information processing speed as compared to estimated pre-morbid abilities. This is also a consistent finding across previous assessments and has not shown any significant improvement. He also continues to show deficits compared to previous ability and new verbal learning. In contrast, there has been a marked improvement in Mr Potts' working memory ability. This suggests his ability to hold and manipulate information in his mind is now consistent with pre-morbid levels."
130 The 2006 testing showed little change of any real significance. The plaintiff continued to demonstrate deficits in processing speed and new verbal learning, compared to predictive pre-morbid levels. Dr Nichols' summary was that there was no evidence of any change in overall intellectual functioning; the plaintiff continued to show moderate impairment in information processing speed, and a reduced ability in new verbal learning. When cross-examined, Dr Nichols agreed that as to the pre-morbid state, she could not say where the "highs and lows" lay in relation to the various sub-categories of intelligence function. She agreed that the plaintiff told her that he had not applied himself at school, and that she had assumed that to be the case. However, testing showed some particular strengths and that "he had the ability but he may not have applied himself in those subjects because from his IQ he is showing that he had the ability."
131 Two of the defendant's medical reports tendered by the plaintiff were from Mr Martin Jackson, a consultant clinical psychologist. Both reports were prepared in 2003 and were based on the neuropsychological testing had been done after the accident and up until that point in time. Mr Jackson's findings at that time essentially mirrored those of Dr Nichols for the same period. On the basis of the then current neurological assessments, Mr Jackson concluded that the plaintiff was a man of estimated high average to superior pre-morbid intellectual abilities. His then current verbal and perceptual intellectual abilities were within the high average to superior range and were not impaired. However, his information processing speed was generally within the average range, indicating moderate impairment compared to his pre-morbid abilities. In summary Mr Jackson said:
"Overall, Mr Potts is a man of estimated high average to superior pre-morbid intellectual abilities who is demonstrating moderate impairment of information processing speed, moderate to moderately severe impairment of multiple task processing, moderate to moderately severe impairment of new learning and moderate slowness of verbal fluency. His impaired abilities are generally within the low average to average range, but are rated as being moderate to moderately severely impaired on the basis that his pre-morbid abilities were in the high average to superior range."
132 Mr Jackson said that the main issue in the plaintiff's case was his lack of insight into the nature and severity of his cognitive difficulties. He said that the plaintiff was not going to be able to learn at the same rate or with the same efficiency that he would have experienced during his year 12 at school. He is going to be much slower to take information in. He will need repetition of information and will need to be able to focus on smaller pieces of information at a time. Mr Jackson predicted that the plaintiff would struggle at university because of his slow processing and lack of efficiency with new learning.
133 A psychiatric assessment was carried out by Dr Philip Reid in September 2010. In a report Dr Reid said that the plaintiff presented "relatively well without evidence of a current episode of depression or an Adjustment Disorder". In his opinion, especially during the plaintiff's time at university, the severity of his distress may have reached the proportions of "Major Depression". Dr Reid said:
"This is not to suggest that the psychological impact of his injuries has not been profound. Certainly there has been understandable feelings of helplessness and despair when confronting the reality of his changed lifestyle. In general he has coped through denial and distraction. The greatest impact of improvement in his mental state came through participation in a youth program where he socialised and regained his confidence. From here he has gained work and feels more accepted. However his vulnerabilities remain in the form of his mild, cognitive impairment and the uncertainty of his yet to be realised goals of a relationship and independence from his family."
134 Dr Reid thought that the plaintiff had a reduced vocational capacity which came about through the acquired brain injury and associated cognitive changes. It was this injury which was more likely to be the cause of any lack of drive or ambition in his current occupation, rather than the psychological sequelae of the injury. He was of the view that for the plaintiff to achieve independence, it may come at the expense of working full time or being promoted.
135 As will have become apparent from my outline of the facts concerning the plaintiff's present disabilities, there is no real issue in this case as to the plaintiff's credibility. I accept both the plaintiff and Mrs Potts as truthful witnesses. Mr Read conceded that much in general terms, although qualified his position in relation to two particular matters which concern loss of earning capacity, and which more involve questions of what inferences are to be drawn, and questions of weight, than credibility as to the underlying facts.
136 Overall, it must be said that the plaintiff bears his grave injury and its daily consequences for him, with an admirable degree of fortitude. He spoke plainly of his difficulties without exaggeration or unnecessary embellishment. Some care needs to be exercised in making assessments of his current and future needs, not to act too readily on the plaintiff's own judgment and perceptions. Obviously, the task is to be significantly guided by his own evidence, but a degree of objectivity is required, guided by the relevant experts who have assessed his particular situation, and with a broad knowledge of the possibilities and probabilities for someone in his situation.
137 That brings me to the proper approach to the assessment of damages in relation to matters such as domestic, nursing and other attendant care, and items of equipment. It is particularly these heads of damage about which the major debate has occurred in this case. Some of the claims across the various heads of damage relate to past expenditure made not by the plaintiff, but by his parents. The defendant submits that these are not payable as the plaintiff has not incurred the expense, and is under no legal liability to repay the amounts. Mr Read relies on Blundell v Musgrave [1956] HCA 66; (1957) 96 CLR 73 as authority for that approach. The plaintiff relies on the concept of compensation for needs created by the injury, as articulated in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, and since confirmed in a number High Court cases.
138 It is now well established that the true conceptual basis of a claim for damages relating to pecuniary needs is that it is the need for items and services which is the loss, not the money required to fulfil the need. The cost of meeting the needs is the measure of the damages: Van Gervan v Fenton (1992) 175 CLR 327, Kars v Kars [1996] HCA 37; (1996) 187 CLR 354, Grincelis v House [2000] HCA 42; (2000) 201 CLR 321, CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [7]. As pointed out in the discussion at par4.3.1 of H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002), Blundell v Musgrave has not been expressly overruled, but Griffiths v Kerkemeyer has been recognised as a departure from the High Court's previous view expressed in Blundell: Kars v Kars (above) per Dawson J at 358, per Toohey, McHugh, Gummow and Kirby JJ at 368. Whilst there have been quite a few signs of discomfort at the consequences of this concept, it remains the law; see for example CSR v Eddy (above) Gleeson CJ, Gummow and Heydon JJ at [31], McHugh J at [100] - [102] and Grincelis v House (above) per Callinan J at [45] - [57].
139 The plaintiff can recover the reasonable cost for meeting a need created by the injury even though he has not incurred, and may not incur, any expense. However, the nature of the payments made and the relationship between the provider and a plaintiff, may be relevant as to whether the defendant is required to meet the expense or whether "the charitable subvention of the services should be debited against the plaintiff, so as to reduce or distinguish this otherwise established entitlement of the plaintiff to damages": Griffiths v Kerkemeyer per Stephen J at 175. As is explained at par4.3.3 of Luntz, (above), "Insofar as there is doubt as to whether the obligation to repay will be enforced one wishes to avoid double compensation to the plaintiff, the decision in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 provides a suitable means of making allowance for that contingency by reducing the damages according to the chance that the plaintiff will not have to repay".
140 That discussion evolves into the issue of the requirements to fulfil the injury-created needs. Expenses must be reasonably incurred, so the question in any particular instance is what is reasonably required, not what are not the ideal requirements. The approach is to assess what a person would do if he or she were spending their own money, yet had sufficient funds, and were well advised and reasonably careful about their own welfare. The benefit from the particular item of expenditure may have to be weighed against the cost: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 at 662; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 573.
141 This issue arises in this case in respect of many of the plaintiff's claims, particularly those relating to attendant care and special equipment. It also arises as part of a broader argument about what Mr Read described as "tennis-type claims". One quite large item of anticipated expenditure relates to the plaintiff's sport of wheelchair tennis, and his desire to travel, both in Australia and internationally, in order to compete. Given his established level of prowess, and what he has done to date, this is not an unrealistic scenario. The defendant's position is that many claimed items are not in respect of a need created by the injury, or alternatively the expenditure would be unreasonably incurred, or again as an alternative, the items of damage are too remote.
142 First, Mr Read submits that it is important to identify the level of abstraction at which the need is to be considered. "If the level is playing tennis then there is no evidence that this is needed by reason of the tort. If it is at the level put for the plaintiff - he chooses to play tennis and therefore he must have a specialised wheelchair then it can be seen there is a need. But a claimed based that way is a claim for loss of amenity. It sounds in general damages." The example was given of the plaintiff choosing to engage in round-the-world yachting, and the rhetorical question posed as to whether the defendant would have to pay for the cost of modifications to the yacht to make it suitable for a paraplegic, and for the cost of an accompanying carer. "Were it the case that the plaintiff was engaged in that pursuit before he was injured then the actual costs would be the basis of the claim but it would then have to survive the scrutiny of what is reasonable." Mr Read relied on a statement made in a completely different context by Owen J (with whom Rowland J agreed) in Stewart v Andri (1994) 19 MVR 1 at 12 that "the rationale for compensation lies in the loss to the injured part of the faculty, not its preservation in a different form".
143 As to the remoteness point, it was argued that the damage claimed must be of such a kind or genus that a reasonable person should have foreseen, and that considerations of remoteness may nonetheless mean that a defendant is not responsible for all losses even though of a kind or genus reasonably foreseeable in a general way. Mr Read submitted "It may be that it is foreseeable that a young man rendered a paraplegic might turn to some kind of sport or recreation that required an adaptive aid. But the measure of damages for that foreseeable consequence cannot be based on the actual cost (or possible future cost) in all cases, as that cost may be too remote." Mr Read set a geographical limit, confining the defendant's liability to the plaintiff's wheelchair tennis activities in Tasmania.
144 It seems to me that it is proper to approach the general issue on the basis that before the accident the plaintiff was a person who was keenly interested in, and regularly participated in, a physically competitive sport. That particular sport is no longer available to him, and he has taken up a substitute. I do not think that either taking up an alternative, or the nature of the alternative, are unreasonable. There is the additional aspect of mitigation of damage. The evidence of Professor Brown and Mrs Potts is that playing wheelchair tennis is beneficial for the plaintiff in both physical and mental terms.
145 In my view it follows that the defendant should be liable for the reasonable costs of the substitute sport. In the end, I do not understand Mr Read as taking issue with that; indeed, the cost of the sport wheelchair for tennis is conceded as not unreasonable. However, on whatever conceptual basis it is put, I would broadly agree with the defendant's submission that there would have to be some limitations on the extent of the defendant's liability. It is trite that injured plaintiffs should be awarded such sums as will restore them to the positions they would have been in had they not been injured. This has obvious limitations in terms of money being adequate compensation for physical impairment, but holds true in relation to the funding of needs created by the injuries. The fact that the plaintiff may be very successful in his substituted sport, and may wish to travel widely to pursue that sport, may be something for which the defendant should not be liable.
146 The last matter is the general issue of contingencies which was raised by Mr Hobbs in closing. He correctly observed that when considering contingencies, the Court must contemplate all things either to enhance or mitigate damages, according to what is considered appropriate: Ritchie v Victorian Railways Commissioner [1899] VicLawRp 130; (1899) 25 VLR 272 at 276; Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 per Windeyer J at 543 - 544. In this case, it was submitted that in relation to a number of claims, the costs represented a reasonable quantification based on current presentation and predicted outcome on a best case scenario basis. It was submitted that there is a more than fanciful possibility that the plaintiff's condition could dramatically deteriorate to the extent of him becoming a quadriplegic, in which case, as Dr Slatyer observed, personal care and other costs "would be astronomically higher than they are now". It was submitted that I should make allowance for the potential adverse contingencies that may befall the plaintiff in the future in the event of a worst case scenario. In other words, when I look at what contingencies may operate to reduce a claim, I should generally bear in mind the possibility to which I have referred, and not overlook that as an ever present adverse contingency. I will endeavour to do this to the extent permitted by the evidence.
147 However, there is an overriding factor in this process. For many of the heads of damage which involve claims for life, the particulars have been calculated using a seven per cent multiplier which makes no allowance for mortality; (748). In these instances, I have not allowed for any discount for the contingency of early death. Of course, the plaintiff's injuries have shortened his life span, but that does not make him immune from normal causes of early death. I take the view that to a very large extent at least, that approach offsets the degree of likelihood of the catastrophic outcome spoken of in submissions.
148 I will now deal with the individual heads of damage, in the order, and with the subject headings as put forward by the plaintiff, except that I will deal with damages for pain and suffering and loss of amenities, after all of the others.
149 The items claimed and the respective amounts are as follows:
150 As to these items, I have had a little difficulty in following precisely what is in dispute, but it is at least clear that there is no argument at all about items 6, 9, 10 and 11. The defendant did not address item 12, but that may well have been an oversight. Starting then with the Wilson v McLeay damages [1961] HCA 56; (1961) 106 CLR 523, the claim represents Mrs Potts' loss of wages for most of the time she spent in Melbourne. Mrs Potts said she stayed because she was told that even patients who are in a coma who do not appear to be aware, do better when they have a loved one by their side. She said that in all the "down times" in which he was not doing therapy, she would sit with Joshua and help him pass the time or play games to help keep his mind active. She also learnt how to deal with his bowel problems. The plaintiff later told her that he was glad she had been with him. The hearsay assertion of Mrs Potts about the benefit of her being there was objected to, and the evidence was taken on the basis that it explained her reason for being there. No objection was raised to the evidence of the plaintiff's comment to his mother.
151 The defendant's submission is that the claim is not open because of the Common Law (Miscellaneous Actions) Act 1986, s5 - now repealed, but applicable to this action. The section provided that an award of damages relating to the personal injury of a person shall not include compensation for the value of services of a domestic nature, or services relating to nursing and attendance, which have been or are to be provided by another person to the injured person, and for which the person in whose favour the award is made has not paid or is not liable to pay. Mr Read did not refer to any authority on the point. Nor did Mr Hobbs for the plaintiff, in his short assertion that Wilson v McLeay damages "stand alone" with "a specific set of criteria", and to which damages, s5, did not apply.
152 This is surprising given that the issue was considered by Zeeman J in House v Forestry Tasmania Serial No B57/1994, [1995] Aust Torts Reports 81-331[2], and there is other Tasmanian authority bearing on the point. In House, the plaintiff claimed, pursuant to Wilson v McLeay, the loss of earnings of his wife for a period during which she cared for him at home, helping him shower, dress and undress. At 24 (62,271), after referring to the judgment of Stephen J in Griffiths v Kerkemeyer (above) at 171 - 175, Zeeman J said:
"The plaintiff's submission to the effect that s5 is directed only to an award of special damages and not to an award of general damages is devoid of merit. There is no basis upon which the plaintiff may recover the loss suffered by his wife. On common law principles he is limited to recovering the value of those services to him. Those services were rendered gratuitously. Section 5 prevents me from awarding any amount in respect of the value of those services."
153 Having regard to the gravity of the plaintiff's injuries, his age, the location of the hospitals, and the length and extent of his rehabilitation treatment, I am satisfied of the "need for such comfort and consolidation" that Mrs Potts, as mother, could provide: Hillier & Carney v Lucas [2000] SASC 331 per Lander J at [556]. That care is likely to have helped alleviate his medical condition. I do not think the time spent with the plaintiff was unreasonable. The claim is one for general damages, not for items of special damage. The question is whether what Mrs Potts did can be properly described as services relating to nursing or attendance within the meaning of the section, and so amount to gratuitous care caught by the prohibition. In Grimsey v Southern Regional Health Board [1997] TASSC 103; (1997) 7 Tas R 67, Wright J at 106 said that "relating to" is a phrase with a wide denotation, having been construed as including anything which can be regarded as having a material connection, correspondence or relationship to the thing in question. His Honour said: "It is therefore wide enough to cover any kind of 'attendance' upon an injured individual which arises from the injury sustained." This observation passed without comment in the defendant's appeal against some of the items which his Honour allowed: Southern Regional Health Board v Grimsey (1998) 8 Tas R 166 at 189 - 192.
154 Further, in Torrent v Lancaster [1991] Aust Tort Rep 81-089, Kennedy J (Rowland J agreeing) said, in the context of Wilson v McLeay, that in light of Griffiths v Kerkeymeyer, "There is much to be said now for assimilating the cost of the hospital visits to other gratuitous services provided for a plaintiff; ...". In my view, the application of what appears from these authorities compels the rejection of this claim. What Mrs Potts did amounted to services relating to attendance within the meaning of the section: see also Nicholson v Nicholson (1994) 35 NSWLR 308 at 323; Manning v State of NSW [2005] NSWSC 958 at [68] - [73].
155 I will next deal with items 2, 3, 4, 5, 7 and 13, being those other than for vehicle modifications and wheelchair replacement. These numbered items are expenses incurred by the plaintiff's parents, and are said to have been required to accommodate the plaintiff's injury-created needs. As such the claims are not ones for special damages, and fall within the principles which I earlier discussed. For those reasons, the defendant's submission that these claims are not payable because the expenditure is that of the plaintiff's parents is rejected. In each instance the issues are whether there was an injury created need for the item, and whether the expenditure is a reasonable measure of the fulfilment of that need.
156 The additional power costs arise from the increased need for heating for the plaintiff, caused by the difficulties which the cold creates for him. Additional and alternative heating was installed in the Lenah Valley home which was paid for by the MAIB. Mrs Potts gave unchallenged evidence that since that time, the household power costs had increased by about 50 per cent. Extra heating was installed in the Rosetta home which is the subject of claim number 10. Various accounts were tendered for the period 26 July 2002 to 18 August 2010. The claim is for $12,711, but this calculation is wrong. A 50 per cent reduction has been made for the period at Lenah Valley but not for the Rosetta period. On my calculations the claim ought to be $6,780. The continuing claim is not the monthly amount of $185 as claimed, but $92.70. The claim is made only to the date of judgment. I am satisfied of the need for this expense and that it is a reasonable amount. I allow $7,985.
157 The claim for additional telephone expenses was also explained by Mrs Potts. She said that initially there was more use of the phone in the house after Joshua came home from hospital, "but probably not so much now, ... - we were making a lot more doctors' appointments and organising, you know, for him to go to other places ...". The claim is for $233 based on Mrs Potts' estimate of "about twenty five dollars a year". Her evidence does not really permit a finding that the expense has occurred in the amount claimed each year, and the medical evidence would not suggest any significant expense over and above an ordinary household. I am prepared to allow $150.
158 There is a claim for $1,157 being modifications to the plaintiff's wardrobe at the Lenah Valley home. The need for the item and the reasonableness of the quantity is not in dispute. The only dispute was that it was expenditure by the plaintiff's parents. For the reasons which I have given, this amount should be allowed in full.
159 The next item of bathroom renovations at Lenah Valley involves a dispute, not so much about the need as such, but the extent of what was done and hence the reasonableness of what is claimed. The MAIB paid for the majority of the renovations; the claim is for the difference between the cost and what was paid. Mrs Potts explained the difference as relating to the wall covering. She said that "Lamipanel" was used, and the Board "were happy to pay for plain white and we wanted something a bit nicer". There was no other evidence about this. The defendant says that the expense represents a choice over what was functional and reasonable and should not be payable by the defendant. In the absence of any further evidence I agree, and make no allowance for this item.
160 As to the relocation expenses, the move from Lenah Valley to Rosetta was precipitated by arguments which the plaintiff was having with his father, which led to broader considerations of independence for the plaintiff, given his age. As I understand it, the only dispute is that the claim is for an expense not incurred by the plaintiff. Having dealt with that issue, the amount should be allowed. In the absence of any argument, I would see it as reasonable for the expenditure to have been incurred at that stage. I would not see it necessary to look at any offsetting in relation to the claim for future housing in the same way as I will suggest be done for future acquisition of motor vehicles, in relation to the next item of past vehicle modifications.
161 Mr and Mrs Potts' motor vehicle was modified to enable the plaintiff to drive it. The plaintiff explained this on the basis that he was having difficulty with his own car, in putting things in and getting them out of the boot; particularly his tennis wheelchair. The boot was a lot smaller and was a bit higher than his parents' car. He said it was alright when other people were around such as his tennis coach, but when he was by himself he was making "mince-meat" of his own car. Mrs Potts confirmed that their car had been modified so that the plaintiff could use it for wheelchair tennis. This is a "tennis type" claim as previously discussed. In my view it should be allowed but subject to an offset under a later head of damages. I do not mean to be critical with hindsight, but this cost was probably incurred because an inappropriate vehicle was obtained for the plaintiff. There is a claim for the future provision of motor vehicles. It seems to me to be fair to make same offset in favour of the defendant in relation to that claim so as to take into account the fact of this expenditure. I will allow the claim in full under this head: $1,200.00.
162 The evidence supports the fact of, and the need for, the wheelchair replacement at the cost claimed. It should be allowed: $8,544.00.
163 The home intercom system not only enables easy communication between the plaintiff in his downstairs flat, and his parents upstairs, but enables him to communicate with a person who is at the front door. The doorbell rings both upstairs and downstairs, and can be answered by the plaintiff from his flat. As I understand it, the opposition to the claim is based on the fact that it was not the plaintiff's expenditure. I am satisfied that there is a reasonable need, and the cost is moderate. The claim should be allowed: $3,133.55.
164 Adding in the amounts for the items about which there is no dispute, the end result is an allowance for miscellaneous expenses in the sum of $68,736.91.
165 This claim has two aspects. The first relates to modifications to the plaintiff's home at Rosetta. The second concerns the costs of suitable housing for living independently. As to those arrangements, the claim was put solely on the basis of modifications to an existing house, rather than the purchase of a block of land and the construction of a purpose-built residence. However, separately particularised but included in the second aspect, is the cost of construction of a carer's flat.
166 There is evidence from Mr Paul Gilby, an architect, as to the modifications required to the Rosetta flat, and the cost involved. In a report dated 16 June 2006, 11 "items requiring attention" were listed, with the total cost, excluding GST being $54,816. The items were described as minor alterations needed to make the flat "comfortable for his current needs as an interim solution". In a report dated 4 November 2007 that figure was updated to $59,400, although the inflation figure used seems to be a little high. This approach had changed by the time of a further report dated 20 March 2008. A number of the items requiring attention had changed, with the modifications being far more substantial. The basis of this was a recognition of the "unit as a place to live and, should his future take him to a new location in Hobart or elsewhere, a facility when he visits his parents". The cost of those modifications, excluding GST is $184,400. With GST the figure is $202,840, and applying CPI increases to date, the figure claimed is $210,954.
167 The most significant change in the proposed modifications is that the current en-suite be adapted to a laundry and passage leading to a new bedroom, with the existing bedroom becoming a fully accessible en-suite and walk-in robe facility. For the plaintiff, it is said that carrying out these modifications, as well as providing for his own residence, does not amount to double compensation. It is put that the delay in establishing independent living, due to the litigation, justifies modification of the current residence. It is further submitted that "the plaintiff will likely continue to utilise his current residence, even after commencing independent living, for periods of respite care and support from time to time, particularly for example, after injury, illness, periods of hospitalisation, deterioration in functional capacity and so on". This, it is said, applies equally in the event that the plaintiff moves interstate but returns on occasions for holidays.
168 The defendant submits that no allowance to modify the unit should be made as it is unreasonable on a cost benefit analysis. It was pointed out that the plaintiff has lived there since January 2006 and did not complain in his evidence about the inadequacies of the unit, other than he wanted to move to be independent.
169 I had the benefit of a view of the plaintiff's unit. The requirements for some of the things such as widening doorways and providing a door connection from the garage through to the living room seem to be quite obvious. In my judgment it is not unreasonable to make an allowance for some modifications to the plaintiff's flat, but I am not persuaded that these should be to the extent of making it equivalent to a permanent residence. Delay caused by litigation might of itself justify significant modifications involving some duplicity, were the claim to be one for expenses actually incurred on present housing: Fitzgerald v Lane [1987] 1 QB 781. But that is not the case here.
170 For two reasons I would allow the cost of modifications in accordance with Mr Gilby's original "interim" scenario. The first is that it will undoubtedly be quite a long time before the plaintiff can locate a suitable house and have the modifications made. Secondly, I think it reasonable to make alterations to the flat to this extent, in order to facilitate short periods when the plaintiff might return home for whatever reason. A weighty factor in reaching my conclusion that it is not reasonable to allow complete transformation, is that the need is essentially put on the basis of time to be spent there by the plaintiff in times of illness, post-hospitalisation, post-injury, and deterioration in functional capacity. A significant part of the more substantial modifications is to make provision for a laundry. That additional laundry would not be needed by the plaintiff if he were in those situations.
171 Allowing for an over-estimation in the CPI increase to November 2007, and revising that figure for CPI increases since then, gives a figure of about $66,000. Providing for GST produces a figure of $72,000. I am satisfied that an award should be made in that amount.
172 The claim for the cost of housing modifications, and the evidence in support, became rather complicated. As originally particularised, the claim was for $615,463, which included an allowance of $15,000 for commercial grade carpet. The plaintiff called evidence from Mr Gilby. In a report dated 25 March 2008, he outlined the features of a suitable facility, the basis of which was a single-storey two bedroom house with a 20 per cent greater size than standard. However, in the detailed schedule contained in an appendix to the proof, the house requirements were described as "generally upsized by 15%", a note being "Generous 2 bed house compared with normal 2 bedroom house". A different figure again emerged in Mr Gilby's re-examination. He was asked the percentage difference in space which would be required if one compared the home of a non-disabled person to a paraplegic. The answer was "I would say it's 25% bigger." In any event, the figure as claimed in the particulars is made up of a figure of $577,368 (the extra cost above a base price for the house), with a CPI increase of 4 per cent, together with the carpet.
173 It is not clear how that claimed figure of $577,368 is arrived at. Mr Gilby's proof of 25 March 2008 states a figure of $524,880, being the cost of upgrading as $440,600 together with contingencies of $21,000 and professional fees and authority charges of $63,280. In cross-examination it was demonstrated that the figure of $440,600 was a very high 58 per cent increase on a figure given in 2004, although the higher figure was purportedly as a result of CPI increases. The costings giving rise to $440,600 was as a result of "doing the exercise again", but Mr Gilby said he was "not sure where those figures come from". I will come back to Mr Gilby's evidence.
174 Additional evidence came by way of a proof of Mr Russell Oates which was tendered in evidence. He is a building consultant. Mr Oates says that the average size of a Tasmanian home consisting of three bedrooms, modest facilities for lounge area, kitchen, bathroom, laundry and garage, is approximately 180 square metres, the cost of building which is $1,600 per square metre, possibly less.
175 The plaintiff also tendered a proof of evidence delivered by the defendant; that of Mr Peter Gaggin, an architect. In that proof, Mr Gaggin details a number of projects on which he has worked, and which involved building accommodation for disabled persons. He concludes that the average cost was $2,490 per square metre. He also says that a reasonable sized two bedroom house is 125 to 150 square metres and that, for some reason not stated, 144 square metres would be suitable for the plaintiff's needs.
176 In cross-examination, Mr Gilby said that Mr Gaggin's figure of $2,490 was a little low. He offered $3,000 to $3,500 per square metre in cross-examination, but in re-examination reduced it to $2,900 to $3,000. He also said in re-examination that a reasonable area for a two bedroom house to accommodate a paraplegic person would be around 200 square metres, with around 250 square metres being appropriate for a three bedroom house. In terms of the cost involved in such houses, about 50 per cent would be attributable to disability-related needs.
177 In closing submissions, the claim was reduced to $287,250. This seems to have been derived from a combination of statements of the various witnesses, but appears to involve some duplication. Despite the whole of Mr Gilby's examination-in-chief being referable to a two bedroom house, and despite his evidence in re-examination as to the preferable size of a three bedroom house for a paraplegic, the claim is now based on a standard three bedroom home of 180 square metres (Mr Oates), at the cost differential between the standard cost of $1,600 per square metre (Mr Oates) and the average cost of housing for disabled persons of $2,490 per square metre (Mr Gaggin) being $890 per square metre. Notwithstanding that cost flows from size, a fair inference being that Mr Gaggin's costs reflect a larger space, the present claim is then added to by Mr Gilby's figure of 25 per cent, making an additional 45 square metres at $249 per square metre. Added to that is the carpet.
178 The defendant points to evidence in Mr Gaggin's proof, which of course was tendered by the plaintiff, to the effect that his firm had been involved on approximately 20 home modification projects for people with acquired disabilities. What was generally involved were bathroom modifications to improve access, and often access provisions from vehicle carports and driveways and home entrances. He says the average cost of these works is in the order of $30,000. On that basis, it is said that a reasonable solution is modification of a suitable house. That is, find one which is more suitable to modification. Mr Read also submits that it would be unreasonable to expect the defendant to pay for modifications at a rate as high as $2,490 per square metre, as this is new specific built accommodation, and the plaintiff does not need that level of modification. It is pointed out that building a house of 150 square metres at $1,600 per square metre, and adding 25 per cent additional cost for paraplegic-based modifications, results in an additional $60,000.
179 The task is to resolve all of this. At this point it is convenient to mention the claim for the self-contained carer flat. This is to accommodate a live-in carer as and when required. As framed in the particulars, the claim was for the cost of actual construction (to be carried out at the same time as the modifications), less anticipated rental until the plaintiff is 60. It was put as an alternative to institutional care at that age. However, the claim is now for a modified construction cost of $104,000 with no off-set for rental. The plaintiff submits that the flat should be available at all times and without notice for occupation by a carer, in the event of need during a sudden deterioration in functional capacity as a result of injury, illness or naturally occurring deterioration in functional capacity.
180 The medical evidence which seems to support the way in which the claim was originally framed comes from Dr Sharman. He said that there was a need to allow for the plaintiff's future deterioration that may require additional outside help, which could be accommodated through a service which provides care in the patient's home. "The situation may arise where if such a service was not available that it may be necessary to accommodate a live-in carer on site. In these circumstances it might be reasonable to make a claim for a small self-contained flat."
181 Ms Michelle French is an occupational therapist. Primarily her evidence related to domestic services and attendant care and special equipment, but some of the aspects of those claims touched on the type of residence the plaintiff might have. In cross-examination she said that there should be about a 10 per cent increase in the area of the home itself for someone with the plaintiff's disability. She went on to say that this is because you add a whole room; "in my experience what we do is have a storage room that combines as a therapy room and an overnight carer's room, so you have one space that can perform a number of functions rather than having multiple spaces." That room was the 10 per cent. Mr Gilby also supported the need for more storage space than would be usual.
182 I am not quite sure of the integrity of the process by which I look at the cost per square metre of building new accommodation for the disabled person, and deduct the standard construction costs for a house, to arrive at a figure in order to quantify modifications of the sort required. Mr Gilby's list of modifications for the acquired house shows, and common sense suggests, that few parts of the house would be unaffected. On the evidence, I am therefore satisfied that the cost of modification is the suggested $890 per square metre. I do not think that any great weight can be given to Mr Gaggin's statement in his proof that the average modification costs of about 20 houses is $30,000. His reference was only to "people with acquired disabilities through motor vehicle crashes." It is a very general statement. The defendant now seeks to rely on this evidence which he would not call, and with none of it having been explored.
183 I am satisfied that it is reasonable to allow these construction costs on a 180 square metre house. This might be a two bedroom house with a room added as suggested by Ms French. It might be a three bedroom house which can be modified in the way she outlined. Common sense would suggest that a three bedroom house might be more suited to the required modifications, and might be more easily obtainable. I am not persuaded that there is a need for a self-contained carer flat. No doubt, as Mr Gilby's list suggests, the house would have en-suite bathroom/toilet facilities for the plaintiff and additional facilities elsewhere.
184 I do not think that an accurate method of assessment is to assume a construction of a new house of certain dimensions, then add a percentage additional area and allow the difference. That ignores many other costs which would be involved and which may be quite unlikely to have been incurred in any event. A broad estimate of the present true costs of Mr Gilby's modifications is now about $350,000. The bare calculation of the square metres involved, multiplied by the net cost differential, totals $160,200. On the whole of the evidence, I am satisfied that an allowance should be made greater than that sum. Based on Ms French's evidence, I take the view that a 10 per cent increase is appropriate. At the higher cost per square metre, a figure of $205,020 is produced.
185 Before finalising the allowance to be made, I should mention the question of the modifications increasing the capital value of the property. Neither counsel addressed the issue under this head. More importantly, the defendant did not seek to show by evidence or argument that an increase in value would result: Wiedeck v Williams [1999] NSWCA 346. It may have been recognised that such modifications as those proposed would not increase the property's value: Rosecrance v Rosecrance [1995] NTSC 136; (1995) 105 NTR 1 at 21. Arguably, they may lessen the value, but put against that would be an increase in size and utility of the property. Even if there were an increase in capital value, in this case it would seem inappropriate to reduce the allowance to the plaintiff, because of the time at which such value would accrue, and because the modifications would deteriorate over time and require repair and maintenance: Marsland by his Tutor the Protective Commissioner of NSW v Andjelic (1993) 31 NSWLR 162 at 176; Nicholson v Nicholson (above) at 326 - 328. The latter is the subject of a later claim, but in any event for the reasons given, I will make no reduction to reflect an increase in capital value.
186 That leaves the cost of the carpet claimed at $15,000. The cost is said to be supported by the evidence of Mr Gilby. But Mr Gilby's evidence is that the cost of commercial grade carpet for a 350 square metre house is an additional $15,000. Regrettably, the cost figure seems to have been picked up without any regard to what it was he was talking about. There was no argument from the defendant in this context about the need for this item, and I do not consider it unreasonable for the plaintiff to have carpeting in his home. That would contribute to his wellbeing in the form of warmth. An allowance should be made for one half of the claimed cost, that one half being $7,500.
187 Taking into account the cost of the carpet, I therefore think it reasonable to allow $212,500. That figure should be discounted because it would not be utilised for about two years. That accords with the way in which some of the plaintiff's other claims have been particularised. That figure then becomes approximately $185,600. The total amount for all home modifications is therefore $257,600.
188 There are four components of this claim: general house maintenance, carpet cleaning and replacement, increased power costs, and increased council rates. All of the components are disputed.
189 The claim for general home maintenance is based on evidence of general household expenditure on maintenance. This figure is doubled "due to wheelchair damage, potential for greater wear and tear to furniture due to transfers, greater need for heating and other needs". The amount is then "further increased to take account of the increased size and cost [sic] of home accommodation". The total figure is $46,115.
190 The defendant submits that there should be no award as the claim amounts to a doubling-up of the claim for the capital cost. Mr Read referred to Marsland v Andjelic (above) and Nicholson v Nicholson (above). However, those cases are not authority for the proposition put forward. What is said in those cases is that where modifications will improve the capital value of the property, it is not appropriate to reduce the damages claimed for the cost of those modifications, because they will deteriorate over time and require repair and maintenance at the expense of the plaintiff. Deterioration itself may diminish or eliminate any capital advantage: see Marsland at 176; Nicholson at 326 - 328. It seems to me that if the modifications give rise to an increase in capital value, and where there is no consequent reduction in the acquisition costs, a plaintiff will have to bear maintenance costs as a set-off. Conversely, where the modifications do not give rise to an increase in capital value, or may reduce the value, there seems no reason in principle for not allowing a claim for maintenance.
191 In this case, for the reasons given earlier, there has been no reduction in the acquisition costs for an increase in capital value on the property to be acquired. Accordingly, I think it is reasonable to make some allowance for increased maintenance. The claim as formulated inexplicably fails to take into account that the base average household expenditure rate would have applied to the plaintiff in an uninjured state. The claim needs to be reduced by that figure, which is $15.38 per week. I do not see any reasonable basis for doubling it and applying further increases, or even simply doubling it. Guided by what I have done in relation to the modifications, I think that an additional allowance of half the usual expenditure is appropriate. $7.70 per week postponed for two years at the relevant discount rate is about $5,000, and I allow that sum.
192 The claim for carpet cleaning and replacement is based on the proposition that the use of wheelchairs causes significantly more wear and tear and the need for more regular cleaning. There is evidence from Mr Gilby which supports this, although that does not mean I am obliged to accept it. His evidence also supports a steam cleaning cost of $700 at nine monthly intervals. Delaying the commencement period for two years and discounting for present receipt, gives a figure of approximately $11,500. Carpet replacement is based on the $15,000 cost of the commercial carpet four times at 10 year intervals. Mr Gilby's evidence confirms the life of the carpet as 10 years. On that basis, the claim for replacement is about $24,300.
193 The defendant says that the whole claim should fail on the basis that it would be unreasonable to have carpet in the house if the claimed level of cleaning and replacement is required. However, no protest was raised about the addition of commercial grade carpet to the modification costs. I have already commented on the reasonableness issue. Taking a broad view of this claim, and bearing in mind some cleaning expenses would probably have been incurred in any event, I think that figures of about $8,000 and $12,000 for the cleaning and replacement respectively are appropriate, and would thus allow $20,000.
194 As to the cost of power, there is a claim for $185 per month for the two year period it is anticipated the plaintiff will stay at home. I have already pointed out that this figure should be $92.50. For the reasons previously given, the claim should be allowed. The sum is $2,090. There is a further claim for future costs. This is based on one half of the recent average power accounts in the one year ending in August 2010. The 50 per cent reduction comes from Mrs Potts' evidence to which I have previously referred. I am satisfied that the plaintiff's injuries create the situation in which he has increased power usage. Mrs Potts was not challenged on her estimate. The opposition to this claim is put on the basis that the plaintiff holds a Commonwealth Health Care Card and remains eligible to hold that card whilst he is eligible for the mobility allowance payable under s1035A of the Social Security Act 1991 (Cth). As a holder of the card, he is entitled to a rebate of 92.55 cents per day on his electricity account. The rebate is increased as the price increases. This allowance is not means tested.
195 The question is whether the rebate is a collateral benefit which the defendant is entitled to have brought into account. I was not referred to the legislative framework by which this rebate exists. It would seem to be an arrangement between the Commonwealth Government and electricity service providers. As between the service provider and the customer, the service provider, for whatever reason, is benevolent to some of its disabled customers. I infer that the ultimate cost is borne by the Commonwealth, and so the Commonwealth is providing the subsidy. The view I take of this is that although not closely analogous, it is akin to pharmaceutical benefits, the subsidy in respect of which has not been the subject of a policy of unavailability or recoverability in cases of persons entitled to recover damages. With pharmaceutical benefits, the subsidy is disregarded in the assessment of damages, so that it is only the actual expenditure by the plaintiff which is to be allowed: National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 69 per Dixon CJ at 573. See the discussion in Luntz (above) at par4.4.3.
196 On the other hand, I should take into account the fact that the rebate is attached to the mobility allowance, which in turn is dependent on the plaintiff working or looking for work: s1035A of the Social Security Act. There is a possibility that may change, although I regard it as slight. There is also a possibility, again perhaps slight, that the terms upon which the rebate is granted will be altered in some way so that the plaintiff is excluded. Taking into account the rebate, the weekly amount discounted, and taking into account immediate receipt, gives a figure a little in excess of $10,000. Making the additional allowances necessary, I will allow $11,000.
197 The final aspect of the additional power costs claim is one related to the self-contained carer's flat. It follows from what I have done in relation to home modifications, that this claim cannot be made out. Similarly, the claim for additional rates relates only to the self-contained carer's flat. No allowance will be made. The total amount under this head is $36,000.
198 This claim is for $555. It represents the present value of the estimated costs of making renovations in the future, at a time when the plaintiff may want to sell the house. The argument is that it is reasonable to surmise that some aspects of the home which were required to make it suitable for the plaintiff would be seen by a prospective purchaser as requiring modification. This would result in a diminution of sale price, and hence capital value, resulting in loss. The defendant submits that the claim results in double compensation, in the sense that the initial modification costs of the house are claimed, then at least some loss due to that initial expenditure is also claimed. The defendant also points out that common sense would suggest that a house already modified for a person with such a disability may be readily marketable. A further submission is that the claim is of such a speculative nature that it should not be allowed in its entirety. I agree. Just as in this case it may have been inappropriate, as I have discussed, to reduce the housing costs for additional capital value, similar considerations apply here. It is too uncertain as to whether the house will be sold during the plaintiff's lifetime. It is also far too speculative, at least on the evidence, that a loss will crystallise at some point in the future in the form of a diminution in market value.
199 The claim is for the provision of a reliable motor vehicle with driving aids, equipment and modifications. Having inspected the plaintiff's present motor vehicle, I accept that it is in need of replacement. The suggestion is for an allowance in respect of a Subaru Forester with regular replacements up to the age of 50, at which time, in accordance with the recommendations of Ms French, that vehicle be replaced with a Kia Carnival wagon. That vehicle permits ramp wheelchair access into the back and has what is described as a "self-drive facility" which means it can be driven from the wheelchair. A number of replacements of that vehicle are claimed.
200 The quantification was done by Mr Ross Pallone, a person with much experience in the area of motor vehicles for disabled persons. The costings give a weekly cost in respect of each vehicle based on a vehicle travelling between 70,000 to 100,000 kilometres before replacement, with three alternative replacement periods being five, six and seven years, representing 20,000km, 15,000km and 10,000km respectively. The weekly costs include capital outlay with required modifications, and "standing and running costs".
201 Allowance has been made for the capital outlay and similar costs for a standard vehicle the plaintiff would potentially have owned had he not been injured. That weekly cost is based on a 2003 Holden Commodore sedan. Taking the median of the replacement scenarios, the claim for the Subaru is $45,991, whilst that for the Kia Carnival is $24,647.
202 I accept that there is a need for the plaintiff to have a reliable motor vehicle suited to his needs, and of course modified to enable him to drive it. It is correct in this case to make an allowance for the cost of vehicles which the plaintiff would have owned in the course of his life. He had his own motor vehicle at the time of his accident. The defendant argues that realistically, the only added cost would be the cost of modifications, although it is acknowledged there may be a need for a roof hoist in a vehicle if the plaintiff is unable to put his normal chair on the seat behind him or next to him, as he now does. The defendant says there is an off-set against these costs. There is an exemption from GST for persons certified as having lost the use of one or more limbs to such an extent that they are not able to use public transport. Mr Pallone's costings included GST.
203 There is evidence of the cost of modifying the parents' vehicle but that was $1,200 and quite a few years ago. With an immediate replacement, and then one every six years for the relevant period, discounted to present value, gives a figure of about $4,370.
204 I think a fair way to deal with the issue is to make no allowance for the Kia Carnival but to take the longest replacement periods for the Subaru, for the whole of the plaintiff's life. I will make some further adjustment for expense which would have been incurred in any event, and an allowance for the modification to the parents' vehicle already carried out. On the GST point, I will treat it in the same way as I did for the electricity rebate. Some off-set should be made for the existence of the exemption but with a recognition that it may not always exist. I allow $45,000.
205 The plaintiff claims the sum of $2,880 for the provision of a mobile phone with three yearly replacement, on the basis that provision and access to a mobile telephone at all times is appropriate for safety, security and emergency reasons. The claim is said to be based on a reasonable accident-related contribution for replacement and call charges. The defendant submits that "there can be no claim for such an expense" on the basis that it does not come within the principle laid down in Sharman v Evans (above), and there is no basis "for thinking that a mobile telephone would be a special piece of equipment required by the plaintiff's condition, rather than an almost universal feature of 21st century life": Henderson v Campbell [2002] NSWSC 1202.
206 Adopting the approach taken by Eames J in Toomey v Scolaro's Concrete Construction Pty Ltd (in liq) (No 2) [2001] VSC 279 at 541, I take the view that some allowance should be made for the fact that the use of a mobile phone has become a vital necessity, rather than a matter of choice. It is also likely that the use of the telephone will be greater. The reasonableness of the suggested contribution is very difficult to assess without any evidence of the costs of ordinary usage. I allow $1,000.
207 This is a major item about which the parties are in substantial disagreement. The claim is for a total of approximately $1.2 million. It is divided into three stages. The first is the two year period before the plaintiff establishes himself independently ($122,401); the second is from then to when the plaintiff is 50 years old ($720,882); the third is from 50 t0 60 ($178,379) and last is post-50 years of age ($182,701). Appendix B to these reasons sets out the particulars. They are self-explanatory and taken from Ms French's recommendations. In general, they have the support of Dr Slatyer, in the sense of his agreement that the provision of those levels of care would be appropriate if the plaintiff's parents were not available. To a large extent they are supported by the evidence of Mrs Gillian Groom, who put forward her own scenario which was somewhat more conservative.
208 The defendant argues that in relation to domestic care, generally it is reasonable to allow about 2½ hours per week for the rest of the plaintiff's life. It is suggested that less assistance will be needed with a properly modified home but that until the plaintiff is in a stable relationship, an actual need for services at commercial cost will exist. It is further suggested that the expense of a housekeeper/cleaner would have been incurred in any event, and no allowance for gardening should be made as there is no evidence that a garden is necessary for the plaintiff's wellbeing, and his expressed preference for one is not sufficient. Home maintenance needs to be assessed on the basis of whether the plaintiff would have done these tasks himself if he were uninjured. Attendant care has to be assessed on the basis that the plaintiff has been without it for the last 8½ years, and is presently able to work and play without it. Deterioration leading to a higher level of care is "a mere possibility" and gratuitous care will be available.
209 Mr Read referred to Professor Brown's evidence that in the event of shoulder degeneration and early development of arthritis of the shoulders, it is likely that the plaintiff would require one hour of personal care per day on non-bowel days and two hours of personal care in the morning on bowel days. "Ten to fifteen years later he may also benefit from an additional hour in the evening to help with his routine at bedtime." The defendant conceded an allowance for some care from the age of 54, and an increasing degree of certainty of need as the plaintiff gets older. An allowance for on-call care every few months could be added. Overall, a claim in the order of $80,000 seems to have been accepted, together with a possible allowance for home maintenance.
210 The fundamental issue is whether the time estimates and costings are reasonable to meet the injury-created needs. I have already discussed this point. Damages should be awarded for what is required to meet reasonable needs, not ideal requirements. Drawing a distinction is often difficult in cases such as this, involving claims such as these. Dr Slatyer agreed that his view of "needs" would include things which, although not essential for reasonable daily life, were desirable for reasons such as reducing the chances of future complications.
211 Ms French was cross-examined about various domestic and attendant care tasks with a view to demonstrating that the plaintiff is physically able to cope. A point which emerged was that Ms French's approach avoided constant reliance by the plaintiff on other people. It was suggested that this approach might not be appropriate for someone who values their independence. She agreed that was an individual choice, saying "When I make attendant care recommendations I make them in - with a long term view of maintaining people's functional independence for as long as possible and also in regard to not placing them in a position of having to ask for care and, therefore, changing - fundamentally changing other relationships like friendships or intimate relationships or partnerships." She disagreed with the suggestion that her recommendations bore little relevance to the actual requirements of patients with a similar injury to that of the plaintiff.
212 In a report dated 28 October 2008 tendered by the plaintiff, Dr Burke (the defendant's expert) was critical of Ms French's assessments. Some points he makes are that:
213 Of relevance is the evidence of Ms Melissa Harback, who is the Disability Support Aged Care State Manager for Anglicare. That organisation provides assistance for people with disabilities including quadriplegia and paraplegia. It has over 400 clients. The level of support ranges from people who need some help every now and then in their own home in the community, right through to 24 hour support. In cross-examination she said that paraplegics tend to fit a "fairly low support" category. "There is one person who requires up to 50 hours, but generally we see people with paraplegia intermittently as they need support." That meant a maximum of once a month for an hour or so when they needed support. Examples were becoming unwell or needing to go to an appointment. The amount of support applied equally to the older paraplegics and the younger. Ms Harback was not asked how many paraplegics there were amongst the 400 clients, but I infer more than a few.
214 In terms of the needs of the plaintiff becoming greater as he ages, the focus is on shoulder deterioration and the possible development of a post-traumatic syrinx. I discussed these things earlier in these reasons when dealing generally with the medical evidence. In particular, I note Dr Slatyer's assessment of the 30 - 50 per cent change of deterioration in shoulder function, at which point the required level of care would be high.
215 Before going further, I need to say something about the hourly rates claimed. Domestic assistance is claimed at $32.32 (sic) per hour. This is Ms French's figure. Mrs Groom's figure in 2006 was $25 which would now be a little over $28. Attendant care is claimed at $35.50 per hour. Mrs Groom's 2006 figure was $33, whilst the defendant has admitted pursuant to a notice to admit facts, that $31.50 is a reasonable cost. There were no submissions about how that should be dealt with. Both gardening and maintenance rates are claimed at $50 per hour. Mrs Groom's 2006 figure is $25. Although in the end, my assessment will not involve precise arithmetical calculations, on the evidence I think it fair to moderate the claimed figures more to accord with Mrs Groom's evidence, she having greater familiarity with the local environment. I find the appropriate figures to be $30, $33, and $30 respectively, for the different types of care. That does not make any major difference to the claims made; the larger ones each having to be moderated by a few thousand dollars.
216 As to the first period of the claim, that being for the two years whilst the plaintiff was still at home, the plaintiff's counsel accepted in closing submissions that the claim was essentially one in respect of the contingencies. It was accepted that the plaintiff will continue to receive assistance from his mother, but for a variety of reasons circumstances may arise in which he will have to replace those services at actual cost. Mrs Potts' evidence was that she spent about 2½ hours per week, including tidying the plaintiff's flat. She said that there was one major claim per week, and that she would go downstairs every couple of days to do things. The evidence is a little unclear, but she seemed to include in that total time, cooking an evening meal. I strongly suspect that the total weekly time of 2½ hours is a significant underestimation.
217 The plaintiff said that when his mother goes away on holidays, he has to cook for himself but he finds that after he has got home and had a sleep, he does not wake up until much later, and he does not make himself a proper meal. At the very least, allowance should be made for, say, 10 hours per week for eight weeks in the next two years. Additionally, some reasonable allowance should be made for the possibility that for some other reason, the plaintiff's mother's care will not be available to him. That should include some allowance for attendant care. I would allow $12,000 for this period.
218 With regard to the remaining periods, the issue is whether the projections for care are those which reflect the reasonable needs of the plaintiff. In this respect, I would accept Dr Slatyer's view that a reasonable need would include such care as might serve to preserve body functioning. In any event, failure to provide assistance at an early time, rebounds in the form of an accelerated, and perhaps greater, need for care at a later stage. The cost of those reasonable needs has to be discounted for the degree of likelihood that the services will be obtained gratuitously without straining the plaintiff's relationship with the person concerned, and that the plaintiff will not utilise the services by choice preferring, where feasible, to fend for himself. I note that there is no evidence from the plaintiff about this.
219 Overall, I am not satisfied that the hours and the type of care set out in the particulars properly reflect reasonably anticipated needs. I am conscious of Ms French's methodology, but it seems to me, in this case at least, that to a certain extent the stated requirements fall within the "ideal" category. The projections present as more theoretical than realistic. By way of examples, Dr Slatyer agreed that the plaintiff did not presently need 24 hour a day care whilst on holidays; secondly, the allowance of 20 hours for annual home maintenance includes provision for swimming pool maintenance and guttering services. Some underlying assumptions are or may well not be valid. For instance, Ms French has assumed a developing scoliosis, that his morning routine takes several hours with his personal care being long and cumbersome, and that he requires assistance to get in and out of his wheelchair. Those things are not supported by the evidence. I also have regard to the plaintiff's express desire to live independently; "on my own". Although this does not negate the need for care and he is not to be penalised for a determined and robust attitude, it does suggest that he may well be happier, at least for a fair time in the future, and as far as he is able, to do things for himself. Ms Harback's evidence is of relevance in this context.
220 Overall, I accept that the weight of the expert evidence supports an award of considerable proportions under this head, and does not support the defendant's position, but there is room for some reductions and discounting nonetheless. As to the contingency of gratuitous care being available, I am not able to say that there is a high degree of likelihood that there will always be a person available and willing to care for him, throughout his life. However, it is more than reasonably possible that someone will be there for him during some significant periods. The plaintiff should receive an adequate level of support to enable him to cope, and in any event and not to rely on those close to him to the extent of putting those relationships at risk. At the same time, I bear in mind the possibility of shoulder degeneration, and the further possibility, although very slight, that the plaintiff's condition will at some point, more likely later rather than sooner, dramatically deteriorate.
221 Based on the factors mentioned and on the present situation, there is justification for making a generous allowance for domestic assistance, but moderating the claim for attendant care. I think an allowance for gardening and home maintenance is appropriate. It is not unreasonable for the plaintiff to have a modest garden. To deprive him of that would impact on other heads of damage, such as loss of amenities, and home modifications to the extent of the capital value issue. The difficult task is to weigh the competing factors and settle on a figure which if given now, will cater for the plaintiff's needs over his lifetime. Bearing that in mind, I will deal with the periods as particularised. One way of approaching the issue is a broad one of applying a discount for all of the factors adverse to the claim which I have mentioned. A discount of one third would not be unreasonable. An alternative way is to make what I consider to be a reasonable allowance for domestic assistance in the form of meal preparation and cooking, general housework and laundry, being roughly based on 10 hours of domestic care per week, 14 hours of attendant care per week and its associated costs, and the gardening and home maintenance as claimed. These approaches produce a range of between about $430,000 and $480,000, the former producing the higher figure. I would allow $460,000 for the second period. The relevant components of care should be increased for the third and fourth periods. I would allow $130,000 for the third period, and the same for the fourth.
222 That makes a total for the whole claim of $732,000, which overall seems to me to be a fair sum.
223 There is no need for me to consider this claim. It was put as an alternative to the claim for domestic services and attendant care in the later period. In closing, Mr Hobbs said that the claim was put basically as an alternative so that I could gain an understanding that there was not going to be a lot of difference in the cost between keeping the plaintiff in the community and providing institutional care. The common view across all relevant disciplines is that the aim is to try to keep disabled people, like the plaintiff, in the community for as long as possible. Within the previous claim, I have made what I see to be an appropriate allowance for the plaintiff in the years of his life after 60.
Assessments for retaining licence to drive a motor vehicle
224 In order to continue driving, the plaintiff needs to provide to the relevant authority, at least every three years, a medical report confirming his fitness to drive a modified motor vehicle. The present cost of such a report is $132. If his health and functional capacity deteriorate, the plaintiff may be required to undergo further assessment by an occupational therapist. The cost of such an assessment is $580. The plaintiff says it is reasonable to suggest that an assessment will be required on a five yearly basis. The defendant says it is not because it is speculative. It is true that I am dealing with possibilities, but I think they are of more than a speculative nature. I do not see that anticipating five yearly assessments is unreasonable. I allow the claim of $2,304 in full.
225 As often happens in cases such as these, this is a type of claim which also excites much debate. Appendix C contains the particulars of the claim. Here again, it is broken down into periods representing stages in the plaintiff's life. There is an assessment based on present functional capacity, with additional equipment said to be required at or about the age of 50. The total is nearly $300,000. The defendant invokes the words of Windeyer J in Chulcough v Holley (1948) 41 ALJR 336 at 339 in describing the invitation to assess damages "by adding up as established future expenditures a number of items, varying from the probable to the plausible, to the fanciful".
226 Dr Burke in his report says that in general terms "Ms French has provided a somewhat extravagant list of possible future equipment requirements covering every possibility that might occur in the future. Such a list bears little relevance to the actual requirements during the lifetime of patients with lesions similar to that of Mr Potts."
227 On my calculations there are 57 separate items, 45 of which are said to be needed now. As to each item, questions arise as to whether it is reasonably needed, whether it should be allowed on a cost/benefit analysis, the cost, the replacement period for many, alternatives for many, and the degree of likelihood of acquisition or use. The issue of future need for a number of items depends on an assessment of the possibilities of the plaintiff's medical condition over his lifetime. He may continue to do very well; it is possible he will badly deteriorate. All this presents a well nigh impossible task.
228 In large part, the claim is supported by the evidence of Mrs Groom. She identified 33 items of current needs, with an additional five for wheelchair tennis, and a further seven at age 50 (although one of those was a van), and a further four at age 60. Many, if not all, of these or similar items appear in the items claimed in the particulars. No doubt there is a need for many of the items claimed. No doubt some are ideal requirements rather than reasonably needed. No doubt some are not warranted on a cost/benefit analysis. No doubt there are some which the plaintiff would not use, or may not use for a very long time. One prominent example of a highly questionable current need, is the motorised wheelchair. An example of a possible future need transformed into a certainty, is the $15,000 bed needed only if the plaintiff gets pressure sores when over 50. An instance where the claim may appear unreasonable on its face, is that for $45.00 per fortnight for car washing. Underpinning much of the approach is Ms French's interpretation of need. Her report often speaks of a benefit to the plaintiff from an item rather than a need for it, although in many cases, there will be little practical difference. Further, some of the "needs" seem to be contingent. The Vibra smoke alarm highlights the difficulty. In cross-examination, Ms French agreed that this item, expressed to be of benefit, would only be needed if a smoke alarm were not hard wired into the home.
229 On the other hand, the defendant has agreed the need for a wheelchair transfer slide board for life, although in evidence the plaintiff said that he does not have one and presently has no need for one, being completely independent in transferring. However, he was not sure about the future, if something were to happen. Another item evidencing the difficulties is wheelchair glove mitts, provision for which is made. The plaintiff said that he did not use them as he did not like the feel; "you lose the sense of the wheels". Ms French was aware of this but included them nonetheless in order to give him the option. An additional factor is that Ms French agreed that there was a market for second hand equipment, and that depending on the condition, prices ranged between 30 and 50 per cent of the new price. That is relevant in terms of both acquisition and net replacement costs.
230 I propose to broadly deal with this claim, and in a way which is admittedly imprecise, but I do not see a sensible option. That however does not mean that I have not given some thought to the individual items. All in all, I am satisfied that it is appropriate to make an allowance of two thirds of the costings of the current requirements, with one half of those for the additional ones commencing at the age of 50. The rounded respective figures are $156,000 and $33,000, making a total of $189,000.
231 I must say that I am a little mystified by the way in which this claim for $198,019.00 is pursued. As particularised, the claim is for costs of enabling the plaintiff to go to five wheelchair tennis tournaments in Australia, every year until he is about 50. International travel costs are also claimed for one trip to New Zealand, one to Asia, two to the USA, and two to Europe, although the latter two are said to be also for recreational purposes. The difference between an average economy and business fare to Sydney is claimed for interstate travel, with a carer in business class. The difference between economy and business class is claimed for the particular international trips; again with a carer in business class. The submission is that similar claims were considered reasonable in Beck v State of New South Wales [2001] NSWSC 278 at [249] - [255]. That is not so. In fact, the claim made on behalf on the quadriplegic plaintiff in that case was for additional costs he would incur when on holidays. Studdert J accepted that there would be a need for holidays, and was satisfied that provision should be made for increased costs that would be incurred in taking those holidays.
232 In this case, apart from the brief mention of a recreational aspect of the trips to the USA and Europe, the claim is explicitly one for the cost of the plaintiff going to wheelchair tennis tournaments. I have previously discussed the essential issues relating to such claims, and there is a need to carefully bear in mind the purpose of compensatory damages with the limitation which that principle imposes.
233 An uninjured person who participates in a sport may choose to travel interstate to participate. No doubt with many sports, participants in Tasmania may seek to travel interstate and overseas in order to compete at a higher level of competition, or simply to take the opportunity to participate. No doubt such trips may be combined with a holiday. Persons who hope to achieve a very high standard in their chosen sport, often have to get financial assistance for the costs involved, which include travel costs. That financial assistance comes from relatives and friends, from fundraising activities and sponsorship.
234 Before the accident, the plaintiff was not a wheelchair tennis player. In strict terms his injury did not create a need for him to play wheelchair tennis although, as I said earlier, I think it is reasonable to make allowance for a substituted sport, and it might fairly be said that there is a need in that sense. Indeed, no issue is taken with the provision of sports wheelchairs. If the plaintiff had not been injured, it is highly unlikely that he would have travelled for that purpose to the extent now claimed for wheelchair tennis. He might have travelled interstate to see the odd soccer match at a higher level than played in Tasmania. The plaintiff is entitled to an allowance to ensure as much as possible that he is not disadvantaged as against an able-bodied person. That was the principle applied by Studdert J in Beck v New South Wales (above). I am not aware of any principle which would support the claim in its present terms, save for the extent that it obliquely refers to holidays, and in my view the claim as articulated is for damages which are too remote.
235 In Beck's case, Studdert J moderated the allowance on the basis that it was not likely that the plaintiff would have travelled as extensively as suggested. At [253], his Honour said that: "Had the accident not happened, the plaintiff would, in all probability, have married and had children, and the associated responsibilities may well have restrained travel, certainly for so long as the children were financially dependent upon their father. Moreover, it is unlikely that the plaintiff uninjured would have chosen capital city holidays of four weeks duration every second year." I think the same can be said in this case. Generally though, I think it likely that he would have holidayed interstate and, given the views I have formed as to his likely income, travelled overseas as well. On that basis, I will make some allowance for the additional cost of holiday air travel but I will need to take a broad approach.
236 I accept the evidence of Professor Brown that the plaintiff would need to fly in business class seats rather than economy, at least on trips longer than about an hour. The evidence as to whether a carer is required is equivocal. Both Ms French and the plaintiff spoke about airline policies. It seems to vary from airline to airline and from time to time. I think it should be accepted that on some trips at some stage in the future the plaintiff will require a carer. I am prepared to make an allowance for additional costs on the basis of one interstate trip every second year at the cost of the economy/business class differential, and attended by a carer in business class. I think that one holiday trip to each of the overseas destinations in the timeframe proposed would not be an unreasonable estimate. The evidence supports an accompanying person on each trip. These should be costed as claimed. All in all, I am prepared to make an allowance of $45,000 which is the present value of the anticipated costs.
237 A claim is made for the additional costs of insuring the modified home at Rosetta, and the modified home and contents of the independent living accommodation. The only evidence about this comes from Ms Linda Conway, who is an accounts manager at ANCA Insurance Brokers. Her evidence consists of a proof verifying some information contained in emails. It is very difficult to apply. The estimate for alterations to the Rosetta flat are based on a figure of $202,840 inclusive of GST. There is simply no way of properly relating this to the figure which I have allowed. I suspect that there would be very little, if any, difference in insuring the whole building. The figure for insuring the proposed residence is based on Mr Gilby's estimate for upgrading, together with the carer flat which I disallowed. The quote relates to the total sum of approximately $775,000, together with additional special equipment of $100,000, the premium being $999. That would now have to be updated to take inflation into account. The defendant accepts that there will be an increased insurance cost, and that it can be based on the cost of modifications and special equipment, but rightly points out that the evidence shows that the increase in premiums is not linear compared to the amount insured. The present insurance cost of the new home based on Mr Gilby's figures is $1,249 a year. Making a rough application of Ms Conway's evidence, and on the basis of my allowances for the items, I think that $5,000 is a fair sum.
238 This is a claim for $1,976 being the required insurance on the wheelchair tennis travel which I have previously dealt with under the head "Interstate and overseas travel". For the reasons which I gave in relation to that head, there is no justification for this claim, save to the extent that it relates to additional holiday costs for which I have provided. The claim is said to be for the additional cost to the plaintiff insuring himself given his pre-existing condition, along with his wheelchairs. However, the evidence put forward in support of the claim is not to that effect at all. The evidence as to the costings is for 31 days' insurance cover without insurance for any pre-existing medical condition, but with allowance for a wheelchair. The evidence is that for a person with paraplegia, a medical assessment form would have to be submitted, the response possibly being that no cover will be afforded, or that there is some cover with limitations at a surcharge. For some reason, the claim was maintained in the plaintiff's closing submissions, notwithstanding this evidence. The cost of coverage for a wheelchair on an international flight is $200. On the basis of the projected international travel for which I have earlier allowed, the figure for wheelchairs is about $400, and I allow that sum.
239 This claim relates to medication, disposable medical items, and other things necessary for the plaintiff's day-to-day life. The past claim, recalculated to the present time, is $17,257.26. That amount is not in dispute. The future claim is based on an average weekly cost of $57.36 for the plaintiff's life. Properly discounted, the resultant figure is $42,905. The past claim, and hence future costs, are based on actual costs to the plaintiff which are, to a large extent, concessional costs due to him being the holder of a Health Care Card. The plaintiff submits that the future figure should be subject to a further allowance primarily because of two contingent factors. The first is that the plaintiff may cease to be the holder of a Card; the second is that there may well be deterioration in his medical condition for which greater expenditure will be required. (The other factor was an allowance for loss between trial and judgment, but that had already been included to a certain extent in the past claim, and I have adjusted the past claim in any event.)
240 First, I do not think any great allowance should be made for the possibility that the plaintiff will cease to be the holder of a Health Care Card. No doubt eligibility criteria and entitlements may change from time to time, but this type of entitlement seems well entrenched, and given the plaintiff's disabilities, I do not believe that any allowance for that contingency should be all that great. Greater allowance should be made for the possibility of the plaintiff's requirements for the relevant items to become greater at some point in the future. I will allow for an additional 20 per cent of the figure to take into account the possibility of increased future needs. I allow $51,500. That makes the total under this head, $68,757.26.
Future medical, therapy and counselling requirements
241 There are 16 discrete claims under this head of damage, one of which has five separate parts. Perhaps with one exception, there is a dispute about one aspect or another of all of these claims. I will deal with them in the order in which they appear in the amended particulars of claim. I have already set out much of the medical evidence relevant to these claims, and will make further specific reference where necessary.
242 General practitioner: The claim is for $8,206. This is based on four attendances a year at the median fee between short and long consultations ($80) up until age 45, with 15 attendances a year thereafter. The evidence supports a need for three monthly visits. The defendant points to the recent GP attendance history and suggests the claim be assessed on that basis. The history referred to is that of three attendances from and including 3 March 2009 up until April 2010. However, there were eight attendances in 2008 and three in 2007. On average, the total since 2007 is a little over four a year. The defendant also suggested that the claim be assessed on the basis of the standard fee costs less the Medicare rebate. That is not the correct approach: see Luntz (above) at pars4.4.4 - 4.4.5. I think it is fair to allow four a year at the full median fee up until age 50, with twice the number of consultations after that time. I allow $6,000.
243 Urologist: The claim is for annual review at a cost of between $144 and $200, leading to a claim of $2,476. The evidence does not support annual reviews, but does indicate urological testing being required every year. The cost of that is dealt with separately. The evidence as to the need for a review by a urologist is confusing. Much of it is directed to the situation which will exist after the artificial urinary sphincter surgery. I accept that the surgery will be carried out in the very near future. In Dr Middleton's opinion, the requirement is for three monthly reviews for a year after surgery, then yearly for five years. The artificial sphincter needs replacement but the costs associated with that are also claimed separately. Other evidence from Drs Slatyer and Sharman is suggestive of a need for review less frequently than annually, but for a period of about ten years post-injury. I will allow $1,500.
244 Colorectal surgeon: $2,745 is claimed on the basis of an average of one attendance every two years. Built into that approach is an assumption that the plaintiff will have the ileostomy procedure. I regard that as a possibility but one with a very low degree of likelihood. The evidence supports review every five to ten years, with one every two to three years for ten years following the surgery. Taking a broad view of things, I think it fair to allow one review every five years for life. I allow $500.
245 Rehabilitation physician/spinal cord physician: The total claim is $4,473. Although particularised separately, I have put them together because the plaintiff accepts that there is an overlap in the sense that often, if not totally, the same physician covers the field. The evidence supports annual review. Based on an average cost of about $150, I allow $2,150.
246 Surgical procedures: The first claim is for $75,000 for corrective surgery relating to the scoliosis. Dr Sharman's estimate went from $10,000 in February 2008 to the $75,000 in a report of April 2008. In evidence he did not assert that he had made specific inquiries as to this procedure, but said that he knew of quotes for spinal surgery well in excess of $50,000, with $75,000 being not unusual. He said that the way in which he found out about costs was to ask the surgeons. There was evidence from a consultant neurosurgeon, Professor Reilly, as to the costs of surgical procedures relating to the alleviation of a syrinx should that occur. (No specific claim is made for such costs.) His evidence as to that surgery suggests a figure of around $20,000. On the basis that the procedure to correct the scoliosis is most unlikely, and doing the best I can with the costings, I would allow $5,000.
247 The claim for the cost of the ileostomy procedure is $5,422. The plaintiff's evidence is that the option is not one that he is "hugely interested in". At this point in time he said that he would not do it, but if his incontinence increased and it was his only option, it would be a possibility. I think the degree of likelihood is slight and I would allow $500.
248 The total claim for the artificial urinary sphincter procedure, taking into account all of the professional fees and diagnostic costs, together with hospitalisation, is $24,582.75. I find that on the basis of Mr Middleton's evidence it is probable the procedure will need to be repeated every 10 to 15 years. The present discounted future costs are $17,865. The evidence of the plaintiff satisfies me that he will have this surgery in the very near future. As I have previously noted, I am satisfied that there is a need for this procedure, and the defendant did not submit otherwise. The costs appear reasonable. In those circumstances, I will allow the claim in full, making a total of $42,450.
249 The next claim is for the penile prosthesis procedure. A total of $41,288 is claimed. As was earlier discussed, Dr Middleton's evidence is that replacement for the prosthesis is about the same as for the artificial sphincter. As to this procedure though, there is a claim for an allowance for what are described as "contingency factors". Those factors are said to be due to failure rates, and repetition of the procedure due to surgical complications. That is supported by Dr Middleton's evidence. The defendant, relying on Stewart v Andri (above), disputes that a claim can be made for this expense. In that case the evidence from an occupational therapist was that the plaintiff's limitation on the independent undertaking of social activity and the ability to establish relationships, and to perform as an active sexual partner, had seriously eroded his lifestyle. The cost of a "masseuse" for sexual services was disallowed. At 12 - 13, in a passage earlier referred to, Owen J observed that the impairment of sexual capacity and the loss of realistic prospects of a meaningful married life or other personal relationship were serious matters that reflected a loss of enjoyment of life. His Honour said that "the rationale for compensation lies in the loss to the injured party of the faculty, not its preservation in a different form. This is what entitles the injured person to compensation. It is a loss of amenity and should properly be regarded as a component of the award for general damages in the sense of non-economic loss: ...".
250 However, the plaintiff in that case suffered severe head injuries resulting in total blindness, brain damage, almost complete loss of taste and 75 per cent loss of function in the right arm. Owen J at 13, observed that the evidence could support a finding that there was some impairment of sexual capacity or a likelihood of inter-personal difficulties, but that whether the evidence would support a finding that the impairment was so extensive that the applicant could never form a satisfactory relationship was "more problematic". I see this case as factually different, justifying a different approach. As a result of Mr Potts' injuries, he has suffered bodily dysfunction. He is unable to achieve an erection sufficient to effect penetration. Treatment is available which may ameliorate that effect. That the procedure might improve the plaintiff's sexual function if it is carried out, is a matter affecting damages for non-economic loss. Conversely, the possibility of him not having the surgery, or it not proving effective, also has to be taken into account under that head.
251 I see no principle standing in the way of an award, but the degree of likelihood of the procedure being performed needs to be assessed. The defendant concedes a high degree of probability, but correctly notes that the decision to proceed or not depends on discussion with the plaintiff's partner at the time. This procedure also has to be delayed pending the artificial sphincter procedure. The balance favours lesser rather than higher degrees of probability, and I am only be prepared to allow $10,000.
252 Suprapubic catheter: This claim is small; only $128.10. I earlier described the nature of this procedure when dealing with the medical evidence. The plaintiff said that he would prefer not to have it, and does not see it as a realistic prospect at this stage. Given that evidence, and the amount involved, I make no allowance.
253 Fertility treatment: The label for this claim belies its true nature. The plaintiff can ejaculate with a partial erection, and of course there is the possibility of the penile prosthesis. The present issue arises from the likelihood of a significant drop in sperm count. The "fertility treatment" claimed for is IVF procedures which, in the main, involve the plaintiff's partner, whoever that may be. There is a possibility of obtaining semen for artificial insemination in the ordinary sense. However, due to the likely poor quality of the semen in spinal injury patients, this simple and inexpensive procedure rarely works. The specialist in this area who gave evidence, Dr Watkins, said that the majority of spinal injury patients end up undergoing IVF procedures due to the low quality of semen that is obtained, and many patients elect to go directly to the IVF method. The success of each attempt is dependent on the partner's age, but if less than 35 years old the success rate is between 35 to 50 per cent. His conservative estimate assuming a woman aged 35, and assuming the average number of children per family in Tasmania at 2.2, the total cost is $119,200. He said that if the woman was in her 20s the cost would be roughly half that amount. He also said that there is a Medicare rebate payable to the female, which would see the bulk of that repaid. In his own clinic that rebate was probably about 80 per cent, although in some other clinics it could be as low as 50 per cent.
254 The claim for $71,806.00 is the present cost based on that anticipated figure of $119,200. It assumes the program is undertaken in five to ten years. That would mean the couple would be striving for two to three children in that time-frame. The present value of that cost is $71,806. I should note that the figure of $119,200 seems to be an average assessment of the cost across Australia. In Dr Watkins' own clinic, the total figure would be reduced to $98,200. The defendant accepts the need for the treatment. The cost of IVF treatment arising from injuries to a male plaintiff has been accepted in other cases: Dallas v Denton Building [2003] NSWSC 833 at [93], and Mato v Zarkas [2005] NSWCA 800 at [42], although as here, there seemed to have been agreement in principle. Whilst the defendant says the Medicare rebate should be taken into account, the plaintiff says that this may not necessarily be so because of the provisions of the Health Insurance Act 1973 (Cth). For it not to apply, particular action needs to be taken by the Minister: s6(2).
255 Even assuming that the plaintiff will have a partner with whom this treatment will be undertaken, there are many uncertainties in the costings. One cycle can produce a few embryos from which two babies can result. Many cycles can be fruitless. I think it fair to proceed on the basis of the costs charged by Dr Watkins' own clinic. I also think the possibility of the Medicare rebate not being available to the female is so slight as should be ignored. The present value of the cost based on Dr Watkins' fees, and based on his scenario, is $38,450. That should be discounted for possibilities that for one reason or another, the procedure will not occur at all, for the possibility that the age of the female will be younger with a consequent higher success rate, and that the number of children will be less. I allow $20,000.
256 Hospitalisation: The claim is for $149,226 being an average period in hospital of two weeks a year for treatment of complications arising from the spinal cord injury. The cost itself is averaged depending on the nature of the treatment. I do not see that the evidence supports actual hospitalisation for an average of two weeks a year for the rest of the plaintiff's life. Professor Brown's evidence was that two weeks a year hospitalised or bedridden might be anticipated, but this need would be weighted towards the end of the plaintiff's life. Hospitalisation for the likely surgical procedures has already been taken into account. On the whole of the prognostic evidence, I think it fair to allow $50,000.
257 Psychologist attendances: The assertion in support of a claim for $15,244 is that the plaintiff has experienced some psychological difficulties in the past "and is presently prescribed and is taking anti-depressant medication". The latter part of that assertion is not correct. There is no evidence at all of the plaintiff presently being on antidepressant medication. Dr Reid suggested that an allowance be made for psychological assistance in the future. The plaintiff said that he saw a psychologist in 2003 to talk about depression and motivation difficulties. He was not entirely comfortable with the practitioner concerned as he was his father's psychologist as well. He said that he felt he needed to see someone else, but he did not. He agreed that after that time he started to "self manage". I agree that some allowance should be made in the future but the full factual basis for the claim is not made out on the evidence. Allowing one attendance a year gives a figure of about $3,000 which I think is fair, and will allow.
258 Occupational therapist attendances: This claim is put in four stages: first, up until April 2013, secondly from then to age 50, thirdly at age 50, and lastly from 51 and thereafter. The total amount is $28,017.72. It is said that 64 hours are required immediately, with 10 hours a year thereafter until the age of 50, at which point the level increases to 26 hours per year for that year. Thereafter the need stays at 10 hours per year. I do not think the estimations properly reflect the needs of the plaintiff, and to the extent that there may be a need, I regard it as highly unlikely that the plaintiff would avail himself of the services to the extent claimed. In Professor Brown's view, the annual reviews (or two yearly when appropriate) would involve a team including an occupational therapist and a physiotherapist. The claim has not been particularised on this global basis but each discipline has been separated out. Nonetheless, his evidence is relevant as to need. Dr Burke says that the plaintiff will require access to an occupational therapist from time to time, with an intermittent need to review equipment, as well as assistance with setting up in independent living. I will make an allowance for about 20 hours to be required almost immediately, moderate annual allowance to the age of 50, increasing beyond then and a concentrated period at age 50. I allow $6,000.
259 Physiotherapist attendances: The claim is for $12,514, being an average of 10 attendances at the average cost of $75 shown by the evidence, together with the cost of an individually designed physical fitness program on an indefinite basis. As I have just noted, Professor Brown included physiotherapist review in his annual physician reviews. I am just not persuaded on all of the evidence that there is a need to the extent claimed. There is a need for review and possible treatment from time to time, but no established ongoing need for actual treatment. I do not regard the individually designed physical fitness program on an indefinite basis as reasonable. The plaintiff is a fit young man playing wheelchair tennis to an international standard. Obviously that will not continue indefinitely and there may be a need for him to seek assistance as to how he should approach proper fitness levels, once he is beyond tennis. As a minimum, one average session a year for life is a little over $1,000. Dr Sharman's view of a reasonable allowance being four to six sessions every two years gives a figure of $2,700. I allow $3,000.
260 Gymnasium membership/fitness consultant: The total claim is $20,607. There would appear to be some doubling up in relation to the physiotherapy claim. Dr Sharman said he thought it was reasonable for the plaintiff to have access to a fitness consultant, and he may require access to a gymnasium for particular exercises depending on his level of sporting involvement. The comments I have made as to the plaintiff's present fitness also apply to this claim. There is no compelling evidence for a continuing ongoing membership of a gymnasium with continued access to a fitness consultant. No doubt the plaintiff will need access to a gymnasium from time to time. A 20 visit pass to the Hobart Aquatic Centre gym is available for $288. Assuming 40 visits a year on average for the rest of the plaintiff's life, which is unlikely, the present cost is a little over $8,000. I think it fair to allow $5,000.
261 Podiatrist services: An attendance every 10 weeks at the established cost of $66 is claimed, making a discounted total of $4,750. The evidence is that the service is generally one of nail care only. The defendant says that there is a need for the service, but the claim should be heavily discounted to take into account the high degree of probability that there will be someone in the plaintiff's life who will cut his toenails. I think that is a fair observation, but some allowance needs to be made for the real possibility that this will not always be the case. I allow $1,200.
262 Diagnostic investigations: This claim relates to urological investigations on an annual basis. The cost is $416.60 a year, making a discounted total of $5,991. In an early report, Dr Middleton said that the plaintiff should have these tests on a yearly basis. A few months later, in a further report, he said that provided there were no urological problems after insertion of the artificial urinary sphincter, the tests should be annually for at least the next 10 years. The defendant says the cost should be limited to 10 years. However I think it reasonable to make allowance for a little longer, say five years. I allow $3,950.
263 Dietician expenses: The claim is for $1,915 on the basis the plaintiff will require periodic assessment and advice from a clinical dietician on a five yearly average. This is put on the basis that there is a probability of weight gain which should be avoided. The evidence from the dietician, Ms Maree Taylor, relates to "a reasonable level of care for the plaintiff in the event he requires future dietetic management as a consequence of his spinal cord injuries". (My emphasis.) It is now 8½ years since the injury. The plaintiff is of slim build and is very active. It is unlikely that the activity will significantly decrease to the extent of problematic weight gain, at least for some considerable period of time. The defendant says that there is no evidence to a support a tort-caused need for the service, or that the plaintiff would ever avail himself of it. I think the evidence is insufficient to make out either the need or a sufficient degree of likelihood that any need would be productive of loss. I make no allowance.
264 Contingency medical and associated expenses: This is a claim for $75,000, suggested as a reasonable allowance for the likelihood of costs over and above those in respect of the particular items and services which I have dealt with under this head. The underlying proposition is that there are significant risks of adverse medical conditions and complications developing in relation to a range of matters relating to health and bodily function. It is argued that allowance should be made for the potential for adverse contingencies to arise which will be productive of substantial financial loss. It is also submitted that the plaintiff will undoubtedly have incurred medically associated costs between the date of trial and the date of judgment. The defendant submits that there is no need for any further allowance, given the "sharp focus" the plaintiff has placed on the various risks in relation to the particularisation of individual claims. I think that is fair comment up to a point. There will have been costs incurred between the trial and the date of judgment, and I am able to see where there are some areas of possible future complications not covered by the individual particularisation. Taking into account the present value of future costs, I allow $5,000.
265 The total amount therefore allowed under the head of future medical and associated expenses is $165,250.
266 This is a claim in four parts which totals $28,180.10. There is a claim for past motor vehicle travelling expenses, and there is a claim for such expenses in the future. There are additional future claims for travelling to Victoria for the artificial urinary sphincter and penile prosthesis procedures, and what are described as "miscellaneous journeys" to Victoria. As to the motor vehicle travelling expenses, the past claim is based on what the list of scheduled benefits from the MAIB shows as to the medical and other services provided. There is no evidence of how the plaintiff got to the various destinations, apart from the plaintiff saying that generally he relied on his parents for transportation for the first two years before he got his driver's licence and the vehicle was modified for him. Motor vehicle expenses are agreed at 45 cents per kilometre. The list ends at 17 April 2007, and the claim since then is based on 40 attendances at 12 kilometres per attendance, bringing it up to the date of trial, with a claimed allowance beyond that. Distances are asserted in the particulars but there is no evidence about this. The defendant says that the trips before the plaintiff was licensed must have been gratuitously provided to him and hence are "not claimable", and that the evidence shows that the bulk of the trips were in the early period before he got his licence. A concession is made to the extent of about one third of the amount claimed.
267 Assuming an average rate of medical attendances for the period to April 2007, and assuming the accuracy of the distances, there is an average monthly cost of about $31. I accept however that the bulk of the trips would have been in the earlier period. Having regard to the analysis of the relevant principles which I made in relation to the Wilson v McLeay claim, I would now accept that a claim for the cost to someone else of running a motor vehicle in order to provide transportation services, would be a claim for general damages for services relating to attendance. There is little evidence of more recent travelling by the plaintiff for medical appointments. I allow $750 for the motor vehicle expenses to date.
268 The claim for future motor vehicle expenses is based on 150 trips each year, including twice weekly gymnasium visits, at an average of 12 kilometres per journey. That amounts to $11,654. I do not think that the evidence supports that many accident-related journeys, at least - as the defendant points out - which are solely injury-related. On a broad assessment, I would allow $5,000.
269 The claim for the trips to Victoria for the surgical procedures includes return business class airfares for the plaintiff, return economy airfares for the plaintiff's mother, car rental, accommodation and miscellaneous expenses. The travelling for this surgery was not previously allowed for. Overall, as I have noted, the evidence does not support the need for business class airfares on short trips. I accept the need for an accompanying person, and the incidental expenses appear reasonable, but the claim is specifically one for Mrs Potts' expenses including her wages. That part of the claim cannot be accepted for the reasons given earlier. I would allow $2,000 in respect of one trip which is likely to be undertaken in the near future. The penile prosthesis procedure can be carried out by Dr Middleton in Hobart. There is no evidence suggestive of any need to travel to Victoria to have this done. I would also refer to the reasons I gave as to the cost of the procedure. I make no further allowance. The last aspect of this claim which is for miscellaneous journeys to Victoria, is primarily put on the basis of travel for further artificial urinary sphincter procedures, and possibly for treatment at the Austin Hospital for complications of the paraplegic condition. One journey each 10 years is suggested as reasonable. The claim includes business class airfares for the plaintiff, with an economy airfare for a carer. The expenses appear reasonable. I allow $2,500.
270 The total for travelling expenses is therefore $7,750.
271 Comprising past and future aspects, the claim is for about $1,456,000, subject to the questions of retained earning capacity and discounting for contingencies. It is put on the basis that in 2002 the plaintiff would have continued with his economics degree course and joined the Army Reserve, obtaining his degree at the end of 2004. He would have then either successfully reapplied to join the ADF in a permanent capacity, or sought employment in either the public or private sector utilising his qualifications, and at the same time continued on in the Reserve.
272 Before the accident. I have already noted the plaintiff's evidence of his desire to join the armed forces, and his unsuccessful application to enter the Defence Force Academy in late 2001. He had enrolled in an economics degree for 2002 and intended, when he was free of the acne medication, to apply to join the Army Reserve. As to his long-held ambition to join the Army to become an officer, the plaintiff said that at the time of enrolling in the economics degree course, he still harboured the desire. He said that he wanted to join the Army as an officer, ultimately to be a pilot. He always wanted to be in the services; that is all he had wanted to do. The economics degree was in case he got cold feet and decided I didn't want to do it any more, or the Army was not an option for him.
273 As to joining the Army Reserve, the plaintiff said:
"I was even thinking - well, I was going to join the Army Reserve while at university for that 12 months, because I thought that would increase - you know, A, increase my chances of getting into the Army, and also, you know, it would be some extra money, and you know, they didn't - they - they don't have intakes, they just - I didn't believe they had just the one intake once a year, so that once the [acne medication] tablets were out of my system then I would have been fine to apply ...".
274 When asked what career he saw himself having in the Army Reserve if eligible and accepted, the plaintiff said that he was not sure. It would be either infantry or artillery, "something outdoors, something active, ...". He wanted to be an officer and believed that he could be. As to the delay in seeking to join the Army Reserve beyond the eligible age of 17, he said that he had not applied for the Reserve because he had wanted to get into ADFA, so that he did not see the point. He said that he believed that he could be part of the Reserves but still be as fully involved in soccer as he had been.
275 In cross-examination the plaintiff was taken through his college results. His tertiary entrance rank at the end of 2001 was 74, and his tertiary entrance score was 55.4. His subjects and TCE scores were as follows:
276 Apparently, six subjects counted and each score is out of a maximum of 20. The plaintiff agreed that he was aware of the neuropsychological assessments putting him in the high average to superior IQ band. When it was suggested in cross-examination that his college results were poor, he said that he was not very good at English, and that he was in fact surprised at his IQ results. When it was suggested to him that he did not "put in at school", he said that he "found it fairly easy". In relation to the specific subjects, he said that he hated "Australia in Asia", that he struggled with physical sciences and mathematics stage 2, adding "I don't know what else to say, they were tough subjects". He said that he was a little disappointed with just missing out on a high distinction in mathematics applied. With physics, he said that one was tough as well. He agreed that he probably did not apply himself at school as much as he could have, saying, when it was put to him that that was in fact what he had told one of the neuropsychologists, "I didn't need to, it came very easily".
277 After being taken to some of his university results, it was suggested to him that once he had got over initial problems, his results were really a question of how much he had "put in". The plaintiff said that he did not believe so; that he tried to "put in" but that he could not. He said that when he was told that he was on the borderline of being excluded, he tried to improve but could not; his results did not really improve.
278 Mrs Potts' evidence was that when Joshua was born, his father was an Air Force police officer, and that she had also previously served in the same role. When the children were young, Mr Potts was in charge of the RAAF police service at Fairbairn base in Canberra. She said that the plaintiff initially wanted to join the Air Force and to fly helicopters, but that this aspect of the armed forces was moved to the Army, and the plaintiff then decided he wanted to join the Army, continuing to express interest in being a helicopter pilot. He had held this desire for a long time. She said that it was before he was 10 years old, because she recalled that on his tenth birthday he was given a light aircraft flight around Canberra. When he was in year 11, he went to an armed forces information evening with his father and brought home the application forms for ADFA. After the rejection based on his use of the acne medication, Mrs Potts said that the plaintiff continued to say that he wanted to join the armed forces.
279 Mrs Potts said that they had no trouble getting Joshua to go to school or to do his homework. She said that he always left his homework to the last minute, but that he always did it. She said that when he finally went to university after the accident, he hated it. She said that a lot of things came fairly easy to him, that he was pretty good at school and always pretty good at sport, and did not like things that he was not good at, so that he did not like experiencing trouble in trying to cope with things with which he had not previously had any real problems.
280 Evidence was called about different career paths, one being linked with being in the Army Reserve. First, I heard from Mr Ross Byrne who is a chartered accountant with an international accounting firm. He is also a long-serving member of the Reserve, having enlisted in July 1972. He presently holds the rank of Colonel in what is called the "Standby Reserve". He said that Regular Army officer candidates do a three year degree at ADFA. For an Army Reservist, the process is basically the same, except the tertiary studies are done on a part time basis. Mr Byrne said that there was flexibility in the Reserve in terms of required attendance. For a trainee officer, the expectation would be that the person does the modules as requested, but he said that there is inbuilt flexibility: "Generally if you have sport commitments that are significant ... or you have a work commitment there is flexibility."
281 For a trainee Reserve officer who is also doing a university course, there is an initial module of up to 28 days which is deliberately held outside normal university schedules. Up to 10 weekends a year would be required, with some weeknight requirements, the total time being spent on parade would average between 50 and 60 days a year. There is normally a 16 day annual compulsory exercise. There is a maximum period of 70 days per year, with exemptions available to do more depending on the training. Mr Byrne said that a young officer in the Army Reserve requires a considerable degree of commitment. Commonwealth and State public services have provision for defence leave up to two weeks, in addition to annual leave; generally most Reservists accommodate much of what is required by the use of annual leave.
282 In cross-examination, Mr Byrne said that English was a pre-tertiary qualification requirement for entry to officer training. He said that in his accounting firm, about 18 graduates had started in the last five years, 10 of whom were still there, with only two of those having moved into senior positions. There had been five new partners in the last 20 years, two of whom had moved on, so there had been three in the last five years. He agreed that about 5 per cent of inductees make it to partner level.
283 Mr Phillip Baker is the Manager of Industrial Relations within the Department of Premier and Cabinet. His evidence concerned career paths for graduates in economics in the Tasmanian State Service. He said the scope of opportunities was broad given the divergence of functions undertaken by Government. It was possible for an economics graduate to aim for a Senior Executive position which were typically attainable by employees in their mid-40s to early-50s and beyond. The Administrative and Clerical Employees Award sets out 10 bands for the "General Stream". In terms of a reasonable but hypothetical career path for someone who graduated in economics in 2004, the person would have been employed in 2005 pursuant to the "graduate pathway" on a starting salary of $40,144. There would be salary increases for each successive year of service, reaching $51,385 in 2007. Mr Baker suggested that within four years the hypothetical employee would have secured a position at Band 5 which, in 2008, attracted a salary of between approximately $56,850 and $66,760.
284 The hypothetical person could, with a high degree of technical knowledge and some demonstrated management skills, attain Band 6 status. At that level, the acquisition of further qualifications is expected. Beyond Band 6 the higher levels up to and including Band 10 and "Senior Executive Service" level beyond that (with individual contracts), are harder to achieve, with fewer positions available as the level increases. As an example, about 250 out of 23,000 employees are at Band 8. Those employees are senior managers with a high degree of technical expertise, and the salary level for that band is between $80,000 and $106,612. Band 10 salaries range between about $109,700 and $158,160, with SES individual contracts between $114,000 and $220,000. He agreed that to have a successful career involving promotion, the person would need ambition, take opportunities that were presented, and perform at a level above the ordinary.
285 Mr Richard Cooper is a certified practising accountant in what was described as a "second-tier accounting group which operates nationally", the first tier referring to four multi-national accounting firms which operate worldwide. In Mr Cooper's opinion, an economics graduate showing initiative and drive could progress from a first graduate employee to full principal in less than 20 years. Aged in their late-20s, the person would likely be a client service manager, or team manager, and then in the age range of 33 to 38, become a salaried principal. The starting salary as a first year graduate is $35,773. Remuneration at principal level is around $176,200 "plus profit share, plus performance shares". In cross-examination, Mr Cooper said that his modelling set levels of maximum expectation. In reality, many will progress to a certain level and then either remain at that level, or leave the firm to do something else. In his own organisation there were 265 staff with seven principals, five of whom were in Hobart, and approximately five team managers.
286 After the accident. Two persons in managerial positions with MyState gave evidence. I have already mentioned Ms Walker, who is the manager of the plaintiff's section. She said that the plaintiff will probably stay at his present level. Although he performs that to a high standard, if he were to move further, then he would need quite a lot of time to learn new skills and tasks, and it is the repetitive tasks which suit him. A lot of other roles may not involve such repetition. He takes longer to pick up new skills in comparison with other employees, and it is fortunate that there is the present ability to allow that time for Josh to pick those skills up. He would have difficulties were he required to use a lot of initiative in any new role. Generally, he has not demonstrated the ability to go beyond his present entry level, and he is not expected to improve. To go into higher levels, and in particular to greater positions of responsibility, he is likely to have to undergo further study. To do more specialist roles in other sections, such as finance or loans documents, he would need the ability to learn a lot of new skills in a timely and quick manner. Ms Walker said the possibility existed of him doing say, three days a week if he got to the point at which he could not physically cope with five.
287 I heard evidence from Mr Aaron Pidgeon who is also a MyState manager, but is in charge of Recruitment and Organisation Development. When asked about the plaintiff's prospects of promotion, he said:
"Look, separating opportunity and ability based on what I know, the opportunity is there at anytime for anyone to look into promotion, it would be more likely that Joshua would probably sidestep into different roles. He's not someone that we see as a future leader within the organisation so he could apply for other roles outside of leadership and to move into other departments but he would probably need to undertake study and he's not at this stage suitably skilled to undertake those roles so at the moment it's fairly limited."
288 Mr Pigeon went on to explain that Joshua was not someone they saw as a future leader. He has not indicated any great aspirations to do so. They did not believe that he displayed the type of characteristics that were needed, in terms of communication or mentor behaviours. In short, he had not shown the potential nor the ability to be a leader in the organisation.
289 I have evidence of a vocational assessment of the plaintiff carried out in January 2007 by Ms Beverley Schiller. The purpose was to identify the plaintiff's aptitudes, skills, vocational strengths and job market realities. The assessment of course pre-dated his employment with MyState. The plaintiff reported to Ms Schiller that he tended to lack diligence and focus during high school, but paid a little more attention to his studies at College. He said that prior to his accident, he was better at exams and "last minute cramming rather than doing assignments", but that this situation had not seemed to apply with his university assessments. He said to her that his university studies had been hampered by too great a study load, given the practical adjustment issues associated with his injuries. Ms Schiller made the comment that unfortunately it seemed that his only assistance from the University had been at the beginning of his studies and only in connection with physical access. "It would have been very useful for Mr Potts to have had advice and advocacy in respect of his study needs and study load (ie, particular attendance arrangements or study coaching etc); if this had occurred he may not have experienced so many subject failures".
290 The plaintiff described his employment record to Ms Schiller as minimal, basically being restricted to his casual work as a soccer referee. He told her that he thought economics and finance would be his best career path because he was interested in monetary matters and economic development. In Ms Schiller's view, because he was assessed by Dr Nichols as being in the superior range of ability, the plaintiff had the ability to complete the degree. Whilst he showed some deficits in processing speed and new verbal learning, there were strategies he could use to compensate for these deficits.
291 Rather insightfully as it turned out, Ms Schiller said that the plaintiff was suited to occupations along the lines of financial adviser, credit and loans officer, insurance claims officer, bookkeeper or finance broker. These jobs are suitable for him in terms of his ability, aptitude and skills, although Ms Schiller said - again with a good degree of foresight - that those involving high levels of client contact may cause him some difficulty, creating a need to develop strategies to compensate for reduced processing speed and new verbal learning deficits. In general, she considered his job prospects were better than other people with paraplegia who lacked the social skills, did not present as well, were not as intellectually capable, and who had not undertaken some university study. Ms Schiller said that it was not unreasonable to hope that the plaintiff's "retained earning capacity is not less than the quoted figure of 46%", (that figure apparently being in actuarial information given to her), because his ability, education and vocational interest equip him for careers that are less dependent on physical activity.
292 Discussion. As previously noted, the particulars are based on the proposition that the plaintiff would have joined the Army Reserve in 2002 at the same time he commenced his economics degree course, and that from 2005, it is suggested, acknowledging that the course his career path would have taken is speculative, it is likely that he would either have joined the ADF as a permanent member, sought employment in the public sector or in private enterprise, in both events maintaining an involvement in the Reserve. Based on ADF permanent pay rates which I have, and on the evidence of Mr Baker and Mr Cooper, it is suggested that the gross commencement salary in 2005 would have been $59,800. This is arrived at by taking the average of the three career paths of the estimated starting level and making some adjustments for tax free Reserve earnings in relation to the second and third alternatives.
293 However, the approach to the career paths is to assume the most rapid rise through the various positions, to the optimum achievements at an early time. For example, the assumptions include a start in the State Service at above graduate entry level and reaching Band 6 by the end of 2009, and being a Lieutenant in the Reserve within three years with a promotion to Captain by 2005. It is assumed that by 2021, the plaintiff will have either been a salaried principal, or full principal with profit share, in a private accountancy firm, somewhere between Band 7 and Senior Executive Service in the State Service, or Lieutenant-Colonel in the ADF.
294 Using the same methodology for four periods up to 2048 being a retiring age of 65 and with no allowance for the Army Reserve in the last period, gives the following figures:
295 As far as the past component from 2002 to 2004 is concerned, a claim is made for the loss of a Veteran's Children's Education Scheme allowance to which the plaintiff would have been entitled had he been attending university, together with estimated Reserve pay on the basis of 55 days at $75.75 per day for three years. Using the above figures through to the end of April 2011, the claim is $234,634.60 which takes into account the $105,951 net wages actually earned to the end of April 2011. Using the same methodology and making allowance for income tax and the Medicare levy from May 2011 to 2050 (being an amended retiring age of 67) gives a figure of approximately $1.22 million. These figures for future loss make no allowance for residual earning capacity nor any discount for adverse contingencies.
296 In relation to the plaintiff's residual earning capacity, his current full time gross salary is $40,500. Given the plaintiff's evidence about full time work and the resultant fatigue, and given the high degree of likelihood of independent living, it is submitted that the starting point is three fifths of that salary, the net figure being $21,890 a year. The suggestion is that net part time earnings will range from about one third to one fifth of the projected earnings had he not been injured. Additionally, there are factors which need to be taken into account such as substantial periods when he is not able to work at all due to accident-related medical complications, and an anticipated deterioration in functional capacity at or about the age of 50. The end result is said to be a residual earning capacity probably less than 10 per cent "when all considerations, including adverse contingencies, are considered and brought into account".
297 The defendant submits that the plaintiff had the intellectual capacity to forge a good career, but his history does not support the conclusion "that there was any degree of probability that he would forge a career near the top end of income as particularised". The reasons advanced are as follows:
298 In particular, it is submitted that the evidence supports a conclusion that the plaintiff is not someone who put in a maximum effort when it was not necessary, or in areas that did not interest him. "Without the strong desire to succeed and a clear interest in economics there is a substantial chance that his University studies would have followed the pattern of his school results". It is also pointed out that although the family has a strong work ethic, there is no history of participation in a high level civilian or military career. Neither of his parents reached officer level in the defence forces, his mother now works as a legal secretary and his sister is an employed hairdresser.
299 In the event that the plaintiff did enter the ADF, and did so as an officer, it is submitted that there are significant hurdles to a career path as particularised. Chances of moving beyond the rank of Major are remote, and it seems to be assumed in the plaintiff's submissions that there is an automatic progression through the ranks. It is submitted that the evidence does not reflect this, nor is it supported by common sense, and that "Given Joshua's patchy HSC results the degree of probability of progressing as an officer is submitted to be very low." The defendant says that the particularised claim for loss of income from the Army Reserve should be rejected. On the whole of the evidence, including the plaintiff's own evidence and the facts of his previous application and his statement as to his intentions, taken together with his interest in soccer and desire for a family would have erected a significant barrier.
300 In this case, the plaintiff had progressed as far as enrolling for an economics degree. There is evidence of his school results immediately before that time. That lessens the difficulties involved in assessing his loss somewhat, but there are still a great number of uncertainties. The plaintiff's college results were not of a high level and, I imagine, would be about average. However, speaking generally some persons with mediocre pre-tertiary results go on to perform much better at university. Some who do very well at college may struggle with university studies. The same is true for tertiary education performance when put alongside career achievements. Some with average qualifications go on to excel in that field, or other fields. Some with an excellent degree do not live up to expectations in the pursuit of their career. Much of this can involve personal choices, particular influences, and events of life beyond the person's control.
301 Before the accident the plaintiff had a particular interest in sport and outdoor recreational activities. He had a long held desire to be part of the ADF. He was keen to start a family, and remains keen to do so notwithstanding the hurdles faced. I would see him to be a person motivated by a desire to properly provide for, and be involved with, his family. I do not think he would sacrifice those interests for particularly high achievement. He had the ability and the drive to enable him to lead a comfortable existence, and does not appear to have been particularly driven by lofty ambition. I think that there is a high degree of probability that the plaintiff would have completed his degree, and ultimately would have been able to earn a higher than average income. It is possible, but I think unlikely, that the plaintiff would not have been able to complete his degree course, and would have sought to enter the Regular Army. Without a pre-tertiary English qualification, he would have had to commence in the ranks. At the other end of the scale, it is possible that he would have completed his economics degree, and emulating Mr Byrne, carved out a successful career in private practice as an accountant and in the Army Reserve. In assessing the loss, my view is that the probabilities lie with the plaintiff finishing his degree and pursuing a career in the public sector or, where he now is, in a major financial institution. I think it is likely that this would have been coupled with some involvement in the Army Reserve, at least for a time.
302 The defendant's position is that the assessment should proceed first on the basis of past loss of income as a graduate employee, with an allowance for a low degree of probability of Army Reserve income, and a loss of chance of greater income from 2007 to the present, caused by delayed entry into the workforce. As to the future, the mid-range of State Service Band 6 is suggested as representative of expected income to age 67. That produces a (discounted) figure of $751,070.
303 Next, the defendant points to a number of "clear indicators of a strong retained earning capacity". In the main these come from his demonstrated capacities at MyState, his demonstrated personality attributes and very good verbal communication skills, and from the vocational assessment carried out by Ms Schiller. The end result of the defendant's arguments as to this point is a retained capacity in the order of his present level of earnings of $670 net per week. A degree of possibility that the plaintiff will do better than his present salary or, on the other hand, might work only part time, must be taken into account, but the present figure is said to present a fair balance.
304 The proper approach. There is no dispute, and I find, that the plaintiff has lost some capacity to earn and that such loss is, and will be, productive of financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 3; Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at [6] - [8]. In that passage from Husher, Gleeson CJ, Gummow, Kirby and Hayne JJ said:
"It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained. ...
What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the inquiry is an inquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff's past work history provides no assistance in deciding what that plaintiff has lost through diminution of future earning capacity. The student who is yet to enter the workforce is an obvious case of that kind. That student may have no history of paid work. Important as evidence of past events may be, that evidence is not determinative of an issue about loss of future earning capacity."
305 Evaluation of the worth of a loss of a capacity to earn, being the loss of a chance to earn, does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers: State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 per Heydon JA at 553 [71]. In the assessment process, it is necessary to take account of future or hypothetical events, and a court can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. "The inquiry - the process of estimation and probabilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters": State of New South Wales v Moss (above) at 553 [72] referring to Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643. Accordingly, damages for financial loss caused by a diminution in a capacity to earn caused by injury is only an estimate, and often a very rough estimate, of the present value of the prospective loss. "Ultimately the process must always be one of judgment rather than calculation": Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 413.
306 Whilst it is generally desirable for detailed evidence to be called as to what the plaintiff might have earned but for the injury, and what the plaintiff is likely to earn after it, there is support for the proposition that over-elaborate evidence is unhelpful, and that the task of assessing damages in this context should be kept as simple as possible: State of New South Wales v Moss (above) at 551 - 552 [66] - [68]; Cowra Shire Council v Trudgett [2004] NSWCA 9 at [21].
307 In Cowra Shire Council Palmer JA at [21] (Meagher and Hodgson JJA agreeing) noted the observations of Moffitt P in J K Kealley v James [1979] 1 NSWLR 723 at 734 - 735 that there are cases in which evidence of prospective earnings which it is claimed would have been achieved, may actually distract from, rather than aid in, the quantification of loss. Palmer JA said that "This is especially so where the plaintiff is a young person who has a number of possible careers open at the time of the accident". In a case involving a young child, Greg James J in Sullivan v GIO [2005] NSWSC 135 at [160] - [161], referred to that passage from Cowra Shire Council, and said that he was not called upon to make a finding as to whether the plaintiff was likely to become a particular professional but was "called on to estimate, having regard to all the probabilities, what the extent of [the plaintiff's] loss, whatever he might have done in life, would probably be if expressed in money terms".
308 Although putting this forward, not as the career path which would have been pursued, but by way of illustration, it seems to me that a move to a State Service Band 8 level of income at a reasonable but not rapid pace is the sort of scenario which has the higher degree of likelihood. Additionally, some account can properly be taken of the possibility of further advancement, and if working in the civilian sector, continued part time military involvement. I bear in mind of course, that my task is not to make predictions as to how the plaintiff's working life would have unfolded, but to attempt to ascribe a value to the loss which his reduced capacity to earn has produced. The loss of chances of success is not necessarily measured in monetary terms, and falls under damages for non-economic loss: Sullivan v GIO (above) at [159].
309 The claim. It is convenient to deal with the claim in its two different aspects as particularised. As to the past component of the loss is concerned, I would include allowance for the Veterans' Children Education Scheme payments. The defendant did not argue to the contrary. I would also regard it as fair to make an allowance for the period at university spent in the Reserve, subject of course to the time which had to elapse before the medication issue resolved itself, and the plaintiff could make an application. From then until now, I think the public sector earnings for a graduate economist with the likely progression as set out by Mr Baker, is a fair estimate of the loss to date, taking into account the favourable and adverse possibilities. As I have noted, the defendant does not argue that there would have been any significant delay in gaining employment. Deducting actual net earnings gives a figure of about $195,000.
310 A relatively unsophisticated but reasonable approach to an estimation of the future value of the loss is to take the average net income from Band 7 of the State Service, and apply that over the estimated working years. That takes into account time spent at Band 6 levels of income and the possibility of higher income in the later years. On my calculations the figure is $965,000. What can be added to that is the value of a reasonable likelihood of income from another source (the Army Reserve) for say 10 years. The same general outcome can be achieved by averaging the earnings of an Army Lieutenant through to Major with the weighting in the mid-range. My estimate of the value of the plaintiff's pre-accident earning capacity for the future period on that basis is $980,000
311 As to retained earning capacity, the plaintiff's present rate of $40,501 gross per annum equates to $670 per week net of income tax. On his behalf, it is submitted that the likelihood is that he will not be able to continue in full time employment once he commences to live independently. This is due to the fatigue factor. It is also submitted that the present level of earnings is unlikely to increase beyond normal increments. Additionally, it is said that significant weight should be given to the possibility of periods when he will be unable to work because of injury-related health complications, and gradual deterioration in functional capacity.
312 The defendant argues that the plaintiff's present level of earnings is a reasonably accurate estimate of his residual earning capacity. As I have noted, the defendant acknowledges the possibility that he might work only part time, but says that there is also a possibility that he will do better than his present salary. It is argued that the present figure represents a fair balance. That figure projected from now to age 67, discounted at 7 per cent, is $479,720.
313 In assessing the value of the retained earning capacity, I have regard to both the physical and intellectual limitations. I cannot agree with the defendant's submissions. In my view there is a relatively high degree of likelihood that in the not too distant future, the plaintiff will, not unreasonably, reduce his work hours. He has already expressed an interest in working three days a week because it would be much easier for him to cope. There is evidence suggestive of him struggling a little with fatigue at work. Were he to reduce his hours, then he may be able to cope with a longer working life. At the same time, I also accept that some allowance needs to be made for the time when the plaintiff will not be able to work due to injury-related complications. These periods would be greater than would apply to an able-bodied person, and the allowance can be factored into this part of the equation. Doing the best I can with this aspect, I think it fair to assess residual earning capacity at 30 per cent.
314 That leaves the question of discount for the "usual" contingencies. There was no evidence as to the appropriate discount, and the plaintiff made no submissions addressing the issue but simply left the question open. The defendant asserted the figure of 15 per cent without reference to any authority. This is the figure which seems to be very generally assumed to be appropriate in all jurisdictions except Western Australia: see the discussion in Luntz (above) at par6.4.5. In this State, Evans J in McLennan v Luttrell [2006] TASSC 44 and Dobson v Jackson [2009] TASSC 118 demonstrated the fallacies within the generally adopted figure of 15 per cent. As to this case, the plaintiff was a student who had yet to find employment. Assuming that employment, there are no particular factors in this case which would suggest that the plaintiff would have experienced lengthy periods out of the workforce relative to fellow workers. At the same time, his very active lifestyle must be of some relevance. It would also be of some relevance that the plaintiff's income could have been generated from his membership of the Army. Based on the discussion in Luntz (above) at pars6.4.7 - 6.4.14, having regard to the analysis of Evans J to which I referred, and bearing in mind the matters which I have mentioned, I would apply a ten per cent discount for the usual contingencies.
315 Accordingly, subject to one last matter, the calculations are the reduction of $980,000 by 40 per cent - ten per cent for contingencies and 30 per cent for residual earning capacity - to the result of which ($588,000) is added $195,000 for the past aspect. That equals $783,000 which I consider a fair sum. The last matter is the question of the plaintiff's Commonwealth mobility allowance. In the defendant's calculation as to the past loss aspect of the claim, it was submitted that one of the things upon which the calculations could be properly based was the income received by way of this allowance which is presently $40.15 a week. I would have thought that the allowance might be more properly raised under a more relevant head of damage, but as it was raised in this context, I will deal with it here. Neither the relevant legislation nor any authority was referred to in the submission. Section 1035A of the Social Security Act 1991 (Cth), essentially provides that a person is qualified for a mobility allowance if the person is a handicapped person, the Secretary is of the opinion that the person is unable to use public transport without substantial assistance (either permanently or for an extended period) due to the person's disability, and the person needs to travel for work, to look for work or for training. As the plaintiff points out, the allowance is clearly intended to assist disabled persons by defraying additional transport costs due to an inability to utilise public transport because of the disability.
316 A mobility allowance is not a "compensation affected payment" within the meaning of Pt3.14 of the Social Security Act, and is accordingly not repayable upon receipt of compensation. Here again, the question is whether the allowance is a collateral benefit which the defendant is entitled to have brought into account. Having recorded the fact that the point was not argued by the defendant, but merely asserted, I take the view that the defendant is not entitled to the credit of the subvention by the Commonwealth in the form of this allowance. Given that it is not recoverable, it seems to me that the allowance is a benefit intended to be retained by the plaintiff, notwithstanding a right to claim damages: National Insurance Co of NZ Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 per Dixon CJ at 573, per Windeyer J at 598; Manser v Spry [1994] HCA 50; (1994) 181 CLR 428 at 435.
317 Based on the amount claimed for loss of earning capacity, the superannuation component has been quantified in the sum of $236,890. This figure is by way of actuarial calculation, the process being to ascertain the total accumulation at the age of retirement and discount that amount by 7 per cent for present payment. The defendant did not argue about the methodology. The essential calculations remain the same irrespective of the starting figure. The amount claimed is about 16.25 per cent of the damages claimed for loss of earning capacity. 16.25 per cent of $783,000 is $127,238 and I allow that sum.
318 This is a claim for $3,494.36 payable to the Commonwealth Department of Education, Employment and Workplace Relations under the Disability Services Act 1986 (Cth). There is a notice of charge dated 9 August 2010. It relates to the Department's assistance given in finding the plaintiff employment and establishing him in the workplace. It is not in dispute and will be allowed.
319 The claim for HECS fees is dealt with twice in the plaintiff's written submissions; once in the list of miscellaneous expenses dealt with above, and once more (as it appears in the particulars) as this later separate head. It is more convenient to deal with it here. Amounts of $15,500 and $15,050 are variously claimed but that may be explicable as a typographical error. In fact, an Australian Taxation Office document shows that as at 8 November 2010, the amount owed by the plaintiff was $15,005. A voluntary payment bonus of $1,365 applied, so if paid in full, the amount was $13,604. The original debt as at May 2006 was $9,809. Indexation applied since that time brought it up to the amount stated. Applying the average indexation amounts since June 2005 gives an amount of $15,443, and applying an estimate of voluntary repayment bonus, the amount becomes $14,000.
320 The amount is claimed on the basis of an unsuccessful attempt at rehabilitation by undertaking the university course. It is said that the amount has been outstanding since the plaintiff left university because of his impecuniosity, although there is no evidence about that. There is certainly no evidence as to why payments have not been made since he started work. The claim is disputed on the basis that these were not costs thrown away in an attempt to mitigate the plaintiff's loss. It is further suggested that the plaintiff received credit for part of his university studies in his TAFE certificate in financial services. It is also submitted that Ms Schiller's evidence shows that the plaintiff himself expressed the view that his job prospects had been improved by reason of his having undertaken some university study, and that he did have the capacity to return and complete the degree if he wished.
321 In my view the proper approach is based on first principles. The HECS fees do not of course relate to retraining for a vocation suited to the plaintiff's disabilities, and whilst it might be correct in strict factual terms to relate them to a wasted effort at rehabilitation, the correct focus is on a projection of what would have happened but for the injuries. The plaintiff was enrolled in this course before the accident. But for the injuries he suffered, it is likely he would have completed the economics degree course. In so doing, he would have attracted a HECS liability greater than he has. He attempted to do what he originally planned to do, but failed in that attempt. On the evidence, I accept that it is more likely than not that this inability was due to his injuries, but this is not to the point.
322 Had he completed his degree course uninjured, he would have had a greater capacity to earn than he has now in his injured state. He would have had that greater earning capacity with the higher level of HECS liability. He is to be compensated for his loss of earning capacity. In achieving the earning capacity for which he claims compensation, he would have incurred greater expenditure than that claimed. It seems to me that on that basis, these fees are not properly claimable as a loss caused by the injuries.
323 There is an amount of $1,224.05 payable to the Health Insurance Commission. There is no dispute about the claim and I allow the sum in full.
324 Scheduled benefits paid by the MAIB total $209,305.36. Under s27 of the Motor Accidents (Liabilities and Compensation) Act 1973, that amount is to be taken in or towards the discharge of the liability for the plaintiff's damages. I have not added the varying amounts into the appropriate heads of damages as past expenses. It is convenient to add in the total figure at this point, as the reduction for contributory negligence will have to apply to the total. I allow the amount in full.
Pain and suffering; loss of amenities and enjoyment of life
325 The first issue between the parties is whether the Civil Liability Act 2002, s28, has any application to the assessment of this head of damage. The section provides as follows:
"28 Tariffs for damages for non-economic loss (general damages)
(1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.
(2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non-economic loss in those earlier decisions."
326 The provision commenced on 4 July 2003 and accordingly after the date on which the plaintiff's cause of action accrued. The plaintiff says that "the provision is procedural, and therefore has retrospective effect". The defendant's position is not entirely clear. The submission was that it was inappropriate to look at cases in other jurisdictions because the tort occurred before the provision was enacted "which may or may not make it permissible to go outside Tasmania". In my view, the plaintiff's point is correct but not for the reason advanced. A statutory provision is merely procedural if it would not, if given unconfined operation, affect pre-existing rights or liabilities. In that event, the presumption against retrospectivity has no application: Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 183 CLR 595 at 615.
327 The issue of when the principle is invoked, and the effect of procedural provisions was discussed in Rodway v R [1990] HCA 19; (1990) 169 CLR 515. In a joint judgment, at 518 and 521, the court said:
"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events ...
But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity." [My emphasis]
328 I conclude that the provision does not operate so as to impact on existing rights and obligations which accrued at the time of the tort. It merely "takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that": Robertson v City of Nunawading [1973] VicRp 81; [1973] VR 819 at 824. Accordingly, the issue of retrospectivity does not arise. The provision enables a court merely to refer to a decision of a court in this State "or other courts for the purpose of establishing the appropriate award in the proceedings". I think that as such, it is a matter of procedure. I hold that the section applies to these proceedings, and that the decisions from other jurisdiction which were brought to my attention were properly done so.
329 That however is not the complete end of the matter. What weight is to be given to these cases is another question. In Dodge v Snell [2011] TASSC 19, Wood J seems to have been referred to a number of cases from New South Wales and Victoria in relation to an assessment of damages for non-economic loss forming part of a broader assessment. Her Honour warned as follows:
"[490] Some general observations may be made about the approach of referring to a few isolated cases from other jurisdictions as the basis for a submission that the range reflected by awards from this Court ought to be increased. The cases are too few in number to provide an adequate guide to the range of awards for a particular jurisdiction. While the facts of one of the cases may be broadly similar, the award reflects details of the circumstances of the plaintiff that are quite different to the facts here.
[492] The other observation to be made is that the awards referred to from this Court and interstate are difficult to rationalise, and it is difficult to see how they might, together, operate as a guide to future assessments."
330 Her Honour then set out what I would respectfully agree to be the proper approach, as follows:
"[494] Having regard to these observations I return to fundamental principles that assist with the task ahead. These principles were stated over 40 years ago by the High Court in Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125, and, of course, well before the reforms in the [Civil Liability] Act, but they still provide sound guidance today. Of primary significance here is the principle that there is no 'standard' to be derived from a consideration of amounts awarded in other specific cases, and that damages must be fair and reasonable compensation for the injuries received and the disabilities caused. However, it is also right to be aware of and give weight to general ideas of fairness and moderation.
[495] The modern approach should be the same, with the refinement that by virtue of ... s28, regard may be had to decisions of other courts in obtaining a general idea of fairness and moderation. I bear in mind the observations I have made about the decisions from Victoria and New South Wales which require a most circumspect approach.
[496] Ultimately my consideration of the award in this case will be governed by a careful consideration of the injuries received by Mr Dodge and disabilities caused. Subject to the matters of fundamental principle in Planet Fisheries, I bear in mind other awards of general damages made in this jurisdiction and the awards to which I have been referred from this Court, and also other courts."
331 I have already detailed the grave and extensive injuries which the plaintiff initially suffered. He has been left with little sensation and complete immobility from the area of his high waist down. He will be confined to a wheelchair for mobility for the rest of his life. Fortunately, his head injury was not as grave as it may have been, but he has been left with some deficits in intellectual functioning. His day-to-day life involves arduous showering and dressing procedures. He has to self-catheterise for urination, and bowel evacuation is done manually. The personal difficulties he faces from day-to-day have been set out earlier. He is to be commended for his fortitude and the sensible and determined way he seems to go about dealing with his disabilities. He should not be disadvantaged by showing such resilience. He was a young man at the time of the accident and will have to carry these injuries for a long time. There are risks of significant deterioration in his condition, although the hope is that his life will not be more seriously affected, at least for some very considerable time hence. I regard the figure of $180,000 as one which properly reflects all of the matters which need to be taken into account under this head.
Assessments for retaining licence to drive motor vehicle
Future medical, therapy and counselling requirements
Pain and suffering; loss of amenities and enjoyment of life
333 That total sum needs to be reduced by thirty per cent. The figure of $209,305.36 being the scheduled benefits paid by the MAIB needs to be deducted from the resultant total. That leaves a sum of $1,840,336.60. Judgment should be entered for $1,840,335.
Domestic assistance 2 hours/week x 52 weeks/year x $32.32/hour
Domestic assistance 1.5 hours/week x 52 weeks/year x $32.32/hour
Attendant care 2.5 hours/day x 5 days/week x 48 weeks/year @ $35.50/hour
Attendant care 2.5 hours/day x 2 days/week x 48 weeks/year @ $44.38/hour (weekends)
Attendant care allowance for training 12 hours/year @ $35.50/hour
Attendant care day shift on holidays 14 hours/day x 5 days/week x 4 weeks/year @ $35.50/hour
Attendant care day shift on holidays 14 hours/day x 2 days/week x 4 weeks/year @ $44.38/hour
Attendant care sleepover shift on holidays 7 nights/week x 4 weeks/year @ $121.28/shift
Holidays attendant care mainland accommodation expenses 28 days/year @ $276.00
Additional allowance for 12 public holidays in Tasmania day shift (50% surcharge) 2.5 hours/day x 12 days @ $17.75
Additional allowance for public holidays sleepover shift on holidays (50% surcharge) say 2 nights average pa @ $60.64
This component is therefore calculated as follows : $1,248.99 pw x 2 years (discounted at 7% for present payment : multiplication factor 98) = $122,401.00.
Domestic assistance 3.5 hours/week x 52 weeks/year x 32.32/hour
Garden maintenance assistance 4 hours/month [3] x 12 months/year @ $50.00/hour
Home maintenance assistance 20 hours/year @ $50.00/hour
It is anticipated the Plaintiff will incur expenses detailed in the table above on a weekly basis in the sum of $1,427.49 to at or about the age of 50, when it is anticipated requirements will increase commensurate with a deterioration in his functional capacity.
This component is therefore calculated as follows : $1,427.49 x 22.5 years less first 2 years (discounted at 7% for present payment : multiplication factor 603 less 98 = 505) = $720,882.00.
Domestic assistance 2 hours/week x 52 weeks/year x $32.32/hour
Domestic assistance 1 hour/week x 52 weeks/year x $32.32/hour
Attendant care 2.5 hours/day x 5 days/week x 48 weeks/year @ $35.50/hour
Attendant care 2.5 hours/day x 2 days/week x 48 weeks/year @ $44.38/year (weekends)
Additional allowance for 12 public holidays days in Tasmania day shift (50% surcharge) 2.5 hours/day x 12 days/year @ $17.75/hour
It is anticipated the Plaintiff will incur expenses detailed in the Table above on a weekly basis in the sum of $2,149.14 throughout the period age 50 to age 60. At age 60 it is anticipated that he will have significant functional difficulties precluding ability to transfer independently with a commensurate increase in need for daily assistance.
The calculation for the period age 50 to age 60 (10 years) is as follows : $2,149.14 pw x 32.5 years less first 22.5 years (discounted at 7% for present payment : multiplication factor 686 less 603 = 83) = $178,379.00.
(Alternative to NURSING CARE / Institutional Care).
Additional allowance for public holidays sleepover shift (50% surcharge) balance (refer 21.0) 10 days @ $60.64
The calculation is therefore as follows : $2,946.79 x 52 years less first 32.5 years (discounted at 7% for present payment : multiplication factor 748 less 686 = 62)= $182,701.00.
Whilst residing at Riverview Parade, Rosetta - estimate 2 years to in or about April 2013
Additional requirements when the Plaintiff resides independently in his own home - anticipated to commence in or about April 2013
Additional assistance required commensurate with deterioration in functional capacity from at or about the age of 50 years
Additional assistance required at or about the age of 60 due to deterioration in functional capacity precluding ability to transfer independently
Evolv standing frame with postural supports (replacing Easystand 5000)
Height adjustable exercise plinth with knee break and head raise and safety sides - Firm n Fold
VibrAlarm allowance for strobe and pillow vibrating alarm - and for installation
Decpac multi-purpose transportable wheelchair ramp with bag
Jay Active pressure cushion with additional incontinence cover
Annual servicing of 2 tennis wheelchairs $250.00 x 2
Allowance for Magic Mobility Extreme 4x4 motorised wheelchair
Self-propelling shower commode chair with padded seat - LifeHealthCare
Commercial Seating Solutions electric height-adjustable corner desk - Stretch Now
Allowance for the modification of recreational/sporting equipment
Expenditure at the level detailed in the above Table at the rate of $348.32 will continue to at or about the age of 50 at which time needs will increase commensurate with a deterioration in functional capacity.
The calculation is as follows : $388.00 x 22.5 years (discounted at 7% for present payment : multiplication factor 603) = $233,964.00.
Liko fixed track ceiling hoist (x2x metre tracks straight)
Minus Liko Light mobile hoist - no longer required
Minus customised slings x2 with 3 year replacement
TDX 5 motorised wheelchair - a reasonable allowance
Minus annual servicing of rigid frame wheelchair
Engrit Rehabilitation King single hi/low bed with upper posture and knee break, including freight
PRM special pressure-reducing mattress - King single
Minus Snooze Osteo Supreme Queen mattress for slat bed
Should the Plaintiff develop pressure sores - Nimbus III and rebatable foam king single mattress (with allowance for a deduction to take account of other sleeping requirements no longer required)
Annual servicing including call out, labour and replacement cells, handsets
The calculation is therefore as follows : $454.53 x 52 years less 22.5 years (discounted at 7% for present payment : multiplication factor 748 less 603 = 145) = $65,907.00.
Current requirements based on present functional capacity
Additional equipment required commensurate with reduction in functional capacity at or about the age of 50
[1] Rule 517 provides that a party may put in evidence against another party a statement served on him or her by that party in accordance with r516. Mr Gunson SC told me that he anticipated that the evidence would be called by the defendant and did not know otherwise until the defendant's case had closed. Mr Read argued that such a tender had to be made in the plaintiff's own case, and could not be made after a defendant's case had closed. I ruled that r517 was wide enough in its terms to contemplate the precise situation which had arisen. That is, a party may tender evidence pursuant to the rule after their case has closed, subject only to the operation of the provisions of the Evidence Act 2001. I said that if I was wrong about that, the application could be properly treated as one to re-open the plaintiff's case. The basis of the application would be a misunderstanding of law on the part of counsel as to the operation of the rule, and a misapprehension that the evidence was to be called by the defendant. I said that as the defendant specifically disavowed any suggestion of prejudice, leave to re-open should be granted, if it were necessary. The tender was sought pursuant to the Supreme Court Rules 2000, r517, and I ruled them to be admissible on that basis.
[2] On AustLII as Geoffrey David House v Forestry Tasmania [1994] TASSC 154.
Potts
Frost [2011] TASSC 55
(2000) 200 CLR 121
(2006) 14 VR 359
(1987) 6 MVR 468
(1977) 139 CLR 161
(1992) 175 CLR 327
(1997) 7 Tas R 67
(1990) 169 CLR 515
(1937) 59 CLR 395
(1957) 96 CLR 73
(1996) 187 CLR 354
(2000) 201 CLR 321
(2005) 226 CLR 1
(1990) 169 CLR 638
(1968) 122 CLR 649
(1977) 138 CLR 563
(1994) 19 MVR 1
(1962) 108 CLR 541
(1961) 106 CLR 523
(1998) 8 Tas R 166
(1994) 35 NSWLR 308
(1993) 31 NSWLR 162
(1961) 105 CLR 69
(1948) 41 ALJR 336
(1995) 182 CLR 1
(1999) 197 CLR 138
(2000) 54 NSWLR 536
(1981) 150 CLR 402
(1961) 105 CLR 569
(1994) 181 CLR 428
(1995) 183 CLR 595
(1968) 119 CLR 118