//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2012] TASFC 6
Supreme Court of Tasmania (Full Court)
2012-12-19
Tennent JJ, Porter J, Evans J, Blow J
Original judgment source is linked above.
CITATION: Potts v Frost [2012] TASFC 6
APPEALED FROM: Potts v Frost [2011] TASSC 55
Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Method of assessment - Voluntary obligations - Expenditure by relatives of plaintiff - Whether for "services of a domestic nature or services relating to nursing and attendance".
Common Law (Miscellaneous Actions) Act 1986 (Tas), s5.
Grimsey v Southern Regional Health Board [1997] TASSC 103; (1997) 7 Tas R 67; Southern Regional Health Board v Grimsey (1998) 8 Tas R 116, followed.
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161; Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, discussed.
Damages - Measure and remoteness of damages in actions for tort - Measure of damages - Personal injuries - Loss of earnings and earning capacity - Legal principles - Method of calculation - Allowances for residual earning capacity and contingencies.
Paff v Speed [1961] HCA 14; (1961) 105 CLR 549; Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541; Atlas Tiles Ltd v Briers [1978] HCA 37; (1978) 144 CLR 202, referred to.
Judgment Number: [2012] TASFC 6
3 Judgment varied by reducing the judgment sum from $1,840,335 to $1,698,298.
1 This appeal relates to a tragic motorcycle accident in January 2002. The appellant, Joshua Potts, was a pillion passenger on a motorcycle driven by the respondent, Darren Frost. They were friends. They and others were staying at a shack at White Beach. Late on the night of 8 January, they went for a ride together. The bike left the road and hit a tree. As a result, both the appellant and the respondent are now paraplegics. Neither of them has any memory of the accident or the events leading up to it. The appellant sued the respondent for damages for negligence. The case went to trial before Porter J. His Honour found that the respondent was the rider of the motorcycle, that he was negligent, and that there was contributory negligence on the part of the appellant in travelling on the motorcycle as a pillion passenger. He reduced the damages by 30% to allow for contributory negligence and, taking into account that reduction, awarded him $1,840,335: Potts v Frost [2011] TASSC 55.
2 The appellant is not satisfied with that judgment, and has appealed. His notice of appeal raises contentions to the following effect:
3 The respondent has cross-appealed. The contentions raised by his amended notice of cross-appeal can be summarised as follows:
4 But it is not as simple as that. The appellant contends that the learned trial judge made a number of errors in assessing damages that are not the subject of grounds of appeal; that those errors were unfavourable to him; and that, assuming that the outcome of the cross-appeal is such that he retains an entitlement to damages, this Court can and must re-assess his damages for the purpose of correcting those suggested errors, whatever may be the result of the appeal, and whatever may be the result of the cross-appeal in relation to damages. The respondent contends, in effect, that what is good for the goose is good for the gander, and that there were errors in the assessment of damages, not referred to in the notice of cross-appeal, that should also be taken into account if this Court decides to re-assess damages on the basis suggested.
5 As we have said, neither of the parties has any recollection of the accident. There were no eye witnesses. The evidence of negligence was circumstantial, and it was somewhat thin. It came mainly from two witnesses - a friend of the parties named Adam Bates, and a police officer who went to the scene of the accident, Constable Leary.
6 The appellant, the respondent, Mr Bates, and a Mr Stirpen had been staying at Mr Stirpen's father's shack. Tuesday 8 January was a rainy day. The four men spent the day at the shack playing card games and otherwise entertaining themselves. They made a trip to a bottle shop in Nubeena, bought a carton of beer, took it back to the shack, and drank it. Mr Bates gave unchallenged evidence of all this. He said that the trip to purchase the beer was "more likely in the afternoon"; that he, the appellant and the respondent shared the carton of beer about equally; that they finished it before the appellant and the respondent went for the ride on the motorcycle; and that, as far as he knew, that ride was nothing more than a joyride. There was no evidence as to whether the beer was full strength or light beer, nor as to the time it was purchased, the time the men started drinking, or the time they finished drinking.
7 The learned trial judge made a finding that the accident occurred at about 11pm. That finding is not challenged in these proceedings. His Honour accepted Mr Bates' evidence as to the events before and after the accident, which was to the following effect. The two men set out on the motorcycle, not wearing helmets. Mr Bates got the keys to the appellant's car, got into that car, and set out to follow the two men on the bike. 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". He went on to say that he "just wanted to be there, just in case". He caught up with the two men at a point where the bike was stationary on the left side of the road. He suggested to them that they should head back to the shack. He said that because he felt "everything was unsafe". They both agreed with his suggestion. They turned around, and started to head back towards the shack on the bike. He did a three point turn, after which he could no longer see them. He drove back to the shack without seeing them. He returned with Mr Stirpen. They eventually found the two men with the motorcycle, off the road and seriously injured.
8 There was no evidence that the respondent was drunk. A sample of his blood was taken at the Royal Hobart Hospital at 2.41am, nearly four hours after the estimated time of the accident. No alcohol was found in that sample. There was no expert evidence as to metabolism rates and so forth, and the learned trial judge was therefore not able to make any finding as to the maximum possible concentration of alcohol in the respondent's blood at the time of the accident or anything of that nature. There was no evidence of drunken behaviour, slurred speech, unsteadiness, or any other sign of intoxication. There was no evidence of irresponsible behaviour other than in relation to the motorcycle journey.
9 There was a body of uncontroversial evidence as to the course taken by the two men on the motorcycle. They travelled from the place where Mr Bates spoke to them for a distance of some hundreds of metres to the place of the accident. The road was almost straight, curving very gently to the left. At the place of the accident, there was a right hand bend which the respondent failed to take. It was not a sharp or difficult bend. Constable Leary took measurements, which he recorded on a sketch plan. The bike left a skid mark about 6.2 metres in length before it travelled onto grass. It travelled a further 17.8 metres through grass and undergrowth to a tree, which showed signs of a recent impact. The front of the bike was found 24 centimetres from the tree. The road was sealed. Its surface was in good condition. The road was wet at the time of the accident, but it had stopped raining.
10 At trial the appellant relied on the principle of res ipsa loquitur. The learned trial judge reviewed a number of authorities as to that principle, and reached a conclusion to the effect that this was a case to which the principle could be applied. He referred to Lafranchi v Transport Accident Commission [2006] VSCA 81; (2006) 14 VR 359, a decision of the Victorian Court of Appeal, as authority for the propositions that the principle can apply in a case where a vehicle ends up off the road, but does not apply in every case when a vehicle crosses to the wrong side of the road, veers off the road, or in some other way ends up where it ought not to be. His reasons for finding that the respondent had been negligent were expressed as follows:
"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.
11 The particulars of negligence referred to by his Honour alleged that the respondent was negligent in that he:
"(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;
(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 [sic] as to avoid running off the roadway and colliding with a tree."
12 This ground concerns the findings of the learned trial judge in par[47] of his reasons, quoted above, as follows:
13 The ground asserts that, because there was no expert evidence as to these matters, it was not open to the learned trial judge to make these findings. Mr Ruskin QC referred us to Lafranchi v Transport Accident Commission (above) in which the Victorian Court of Appeal said, at par[50]:
"It is well-established that expert evidence is admissible on the question whether the RIL [res ipsa loquitur] principle applies."
He submitted that, on the facts of this case, the findings listed above could not properly have been made without expert evidence. We disagree. Fact-finding as to why a vehicle ran off a road does not take a trier of fact into an area in which the lay mind cannot operate without expert assistance. In our view the evidence in this case was sufficient for the learned trial judge, as the trier of fact, to apply his ordinary knowledge and experience and reach the conclusions that he did. Ground 1A must therefore fail.
14 This ground asserts that the learned trial judge erred in law in pars[47] and [48] of his reasons, quoted above, in finding that the line of travel shown by the markings in Constable Leary's sketch plan "was sufficient to put the case in a category of the kind of occurrence which does not ordinarily occur without negligence thus making negligence a more likely explanation".
15 This ground also asserts that the making of the impugned finding involved ignoring certain evidence given by Constable Leary, which his Honour summarised in pars[27] and [28] of his reasons as follows:
"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.'
16 Plainly his Honour did not ignore the evidence of Constable Leary. He considered the likelihood of the motorcycle having left the road without negligence - a possibility consistent with both the hypothesis that the pillion passenger had interfered with the stability of the bike at a critical time, and with the hypothesis that the respondent had braked to avoid a collision with an animal - and then concluded that there had been negligence.
17 The evidence as to the course taken by the motorcycle, and of the skid mark indicating braking, was uncontroversial. It was reasonably open, and in our view entirely appropriate, for the learned trial judge to use that evidence in order to conclude that this particular case of running off the road was one in which the res ipsa loquitur principle applied. Ground 1 must fail.
"1B His Honour erred at [48] in holding that there was a combination of speed and inattention on the part of the defendant, and that particulars of negligence (b), (c), (e) and (f) were made out:
(a) because such findings were inconsistent with the application by his Honour of the principle of res ipsa loquitor [sic]; and
(b) because there was no evidence to support such findings."
19 The first part of this ground appears to involve a misconception as to what his Honour concluded about speed and inattention. What he said in par[48] was this:
"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. [Our emphasis.]
20 In our view his Honour went no further than to suggest that speed and inattention were the most likely possibilities. He did not make a finding that either speed or inattention caused or contributed to the accident.
21 As to the particulars (b), (c), (e) and (f), Mr Ruskin QC submitted that it was inconsistent with the application of the principle of res ipsa loquitur for the learned trial judge to make a finding that the respondent had been negligent in any particular respect. However careful scrutiny of the four particulars in question reveals that they actually assert very little. Each of them really only asserts that the respondent did not do anything to prevent his motorcycle from running off the road and colliding with the tree. By finding that the four particulars were made out, the learned trial judge therefore did not make any specific finding that was inconsistent with the application of the res ipsa loquitur principle. Ground 1B must therefore fail. The respondent's challenges to the finding that he was negligent have all been unsuccessful.
22 One issue at the trial was whether the appellant's failure to wear a crash helmet caused his head injury, or resulted in a more severe head injury than he would otherwise have suffered. The learned trial judge, after reviewing the evidence relevant to that issue, was not satisfied on the balance of probabilities "that the head injury would not have been caused or would have been of less severity, had the plaintiff been wearing a helmet". That conclusion has not been challenged in these proceedings. The finding of contributory negligence was made on the basis that the appellant was negligent simply in travelling as a pillion passenger at the time of the accident, having regard to the relevant circumstances.
23 The evidence referred to by the learned trial judge when considering the allegations of contributory negligence was to the following effect:
24 On the basis of all that evidence, his Honour reasoned as follows:
"... 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."
"1 That the learned trial Judge erred in law and in fact in finding that the appellant had been contributorily negligent when there was no evidence upon which the learned trial Judge could properly have made such finding and such a finding was not reasonably open on the evidence that was adduced at the trial of this action."
26 In his submissions on behalf of the appellant in relation to this ground, Mr Gunson SC emphasised what was missing from the evidence. There was no evidence as to the speed of the motorcycle before it left the road, any bad riding by the respondent, any sign of intoxication, the strength of the beer, the timing of the consumption of the beer, alcohol in the respondent's bloodstream, or any drunken or unusual behaviour. However it does not follow that the finding of contributory negligence was not reasonably open. Whilst there was an unusual lack of evidence as to many points, his Honour clearly treated the evidence of Mr Bates' response to the two men going for their ride as very powerful evidence that their journey was dangerous, and that the dangers were related not only to the absence of helmets and protective clothing, but also to alcohol consumption. Whilst there was no suggestion of drunkenness, his Honour was satisfied that the respondent had drunk at least several stubbies, and that a reasonable person ought to be aware that someone in that situation "may be less well equipped to manage a motor cycle on [a] roadway with a pillion passenger on board, than one who has not". In our view it was open to him to make the finding of contributory negligence and his reasoning was unimpeachable. Ground 1 must fail.
"3 That the learned trial Judge erred in law in failing to disclose or adequately disclose the reasoning process whereby he concluded that the plaintiff's damages should be reduced by thirty percent for contributory negligence."
28 It is clear from the written submissions of Mr Gunson SC that this ground relates to the reasoning process that led to the finding of contributory negligence, not just the reasoning process that led to the conclusion that 30% was an appropriate reduction of the appellant's damages. It is clear that a failure by a judge to give reasons, or sufficient reasons, for a decision amounts to an appealable error: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
29 We have listed the evidence referred to by the learned trial judge in his reasons relating to contributory negligence, and set out his conclusions in relation to that evidence. In our view it is perfectly clear that his stated reasons sufficiently disclosed the reasoning process that led to the finding of contributory negligence. His Honour made perfectly clear the bases upon which he concluded that each of the parties had been negligent. Whilst he did not state that he considered that the respondent should bear the greater share of the responsibility for the accident, that was made perfectly clear by his adoption of a figure of 30%. In our view there was no need for him to say anything more as to why he adopted that figure. Ground 3 must fail.
30 The appellant contends that the reduction of 30% for his contributory negligence was excessive. Ground 2 of his notice of appeal asserts that such a reduction "was not reasonably open upon the evidence".
31 The respondent contends that the reduction of 30% was inadequate. Ground 2 of his amended notice of cross-appeal reads as follows:
"2 Alternatively his Honour erred at [55] in the finding that the plaintiff should be held liable for his injuries to the extent of 30%. The proper comparison of degrees of responsibility is between the ongoing negligence of the plaintiff in getting on to and remaining on the bike in all of the circumstances detailed in the evidence and the momentary and intangible negligence of the defendant of speed and inattention."
32 When findings of negligence and contributory negligence are made, the Wrongs Act 1954, s4(1), provides for the damages to "be reduced to such extent up to 100% as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage". A trial judge's decision as to the extent of the reduction is a discretionary decision to which the Supreme Court Civil Procedure Act 1932, s45(1), applies: McKinlay v Reading [1977] Tas SR at 15; Les Walkden Enterprises Pty Ltd v Menzie [2001] TASSC 140 at par[45]; Direen v Coad [2005] TASSC 122; Tamarack Pty Ltd v Beswick [2010] TASFC 5 at par[46]. Section 45(1) limits the circumstances in which appeals from discretionary decisions can succeed. It reads as follows:
"(1) A Full Court, on the hearing of any appeal from any judgment, order, or other determination (whether final or otherwise) of a judge, shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise, unless it appears to the Full Court that -
(a) the judge has, in fact, declined or failed to exercise the discretion;
(b) the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;
(c) the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or
(d) by reason of further evidence received by the Full Court in exercise of the powers conferred by section 48, or some special circumstance, the adjudication should be reversed or varied."
33 Section 45(1) does not confer a general discretion to reverse or vary a discretionary decision on the basis of the Full Court's view as to what is reasonable and just, nor to do so whenever the Full Court thinks it would have been better to have given more weight or less weight to a particular factor.
34 In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493 - 494, the High Court said in relation to the apportionment of damages in cases involving contributory negligence:
"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds' ... Such a finding, if made by a judge, is not lightly reviewed."
35 It was reasonable for the learned trial judge to conclude that the respondent should bear the greater share of responsibility for the appellant's injuries, given that it was the respondent who had control of the motorcycle and failed to keep it on the road. The two men could be regarded as having been equally negligent in deciding to go for an unnecessary ride when there was a degree of danger. The appellant's conduct in remaining on the bike for the journey back to the shack, rather than walking or travelling with Mr Bates, also weighed against him. Having regard to those factors, the decision to reduce the damages by 30% does not suggest that the learned trial judge proceeded on a wrong principle within the meaning of s45(1)(b). None of the provisions of s45(1) are applicable. The grounds relating to the 30% reduction must fail.
36 The learned trial judge assessed damages as follows:
Assessments for retaining licence to drive motor vehicle
Future medical, therapy and counselling requirements
Pain and suffering; loss of amenities and enjoyment of life
37 His Honour reduced that sum by 30% to allow for contributory negligence, and deducted a further $209,305.36, representing the sum paid by the Motor Accidents Insurance Board ("the MAIB") by way of scheduled benefits. That calculation produced a balance of $1,840,336.60. As we have said, judgment was entered for $1,840,335.
38 Both parties contend that his Honour made errors in assessing damages under some of the heads listed above.
39 As can be seen in the calculation above, the damages assessed by the learned trial judge included two components relating to the impairment of the appellant's earning capacity - a salary component of $783,000 and a superannuation component of $127,238. In arriving at those two figures, the learned trial judge made allowances for the "usual" contingencies (unemployment, sickness, etc) and in relation to the appellant's residual earning capacity. The appellant's grounds 4 and 5 assert that he adopted an inappropriate methodology in taking contingencies and the residual earning capacity into account. Ground 4 relates to the salary component, and ground 5 to superannuation benefits.
40 In assessing damages for the impairment of the appellant's earning capacity, his Honour began by estimating the capital value of the future earning capacity that the appellant would have had, but for his injuries. His estimate was $980,000. That estimate is not challenged in these proceedings. His Honour then proceeded as follows:
41 Mr Hobbs submitted to us on behalf of the appellant that the making of a 40% reduction was wrong in principle, and that the learned trial judge was obliged to compound the 10% and 30% reductions as follows:
42 On this basis, the appellant contends that the appropriate figure for the loss of future earnings was $617,400, not $588,000. That is what ground 4 asserts.
43 His Honour assessed damages in respect of the loss of superannuation benefits by calculating an appropriate percentage of the figure of $783,000 referred to above. The appellant contends that the figure of $783,000 was incorrect because it was based on a simple 40% reduction; that the correct methodology would have produced a figure that was $29,400 greater, ie $812,400; and that damages in respect of superannuation should have been assessed as the appropriate percentage of that higher figure. That is what ground 5 asserts.
44 In his submissions on behalf of the appellant as to these grounds, Mr Hobbs referred us to quite a number of authorities: Paff v Speed [1961] HCA 14; (1961) 105 CLR 549 at 566; Atlas Tiles Ltd v Briers [1978] HCA 37; (1978) 144 CLR 202; Bresatz v Przibilla [1962] HCA 54; (1962) 108 CLR 541 at 544 - 545; Mayne and McGregor on Damages, 12th ed, (1961) at pars764 - 766; Carter v Motor Accidents Insurance Board (unreported, 129/1998, Cox CJ); Brown v Falzari [2001] TASSC 46. In our view none of the authorities to which we were referred suggest that, when a judge makes allowances by reference to percentages in respect of both contingencies and residual earning capacity, it is obligatory for the two percentage reductions to be compounded, rather than simply being added together in the manner adopted by the learned trial judge. The task of the learned trial judge was to assess amounts of damages that would fairly and justly compensate the appellant in respect of his relevant losses. No particular methodology was compulsory. It was open to him to allow for contingencies and for the appellant's residual earning capacity in various different ways. He could have reduced the appellant's damages by a dollar figure in respect of each such factor. He could have adopted the compounding methodology contended for by the appellant. But it was also open to him to adopt the methodology that he in fact adopted.
45 The relevant paragraphs in his reasons disclose no confusion or error in the approach he took. When he said that he thought it fair to assess residual earning capacity at 30% it is clear, from the calculations subsequently undertaken by his Honour, that he meant 30% of $980,000. When he said that he would apply a 10% discount for the usual contingencies, it is clear from the subsequent calculations that he meant 10% of $980,000, not 10% of a reduced sum. After adding $195,000 in respect of past losses, his Honour said, "That equals $783,000 which I consider a fair sum."
46 In our view no error has been shown as to the methodology that his Honour adopted. Grounds 4 and 5 of the notice of appeal, like all the appellant's other grounds, must fail.
Abrogation of Griffiths v Kerkemeyer (ground 3 of the cross-appeal)
47 Ground 3 of the amended notice of cross-appeal reads as follows:
"That His Honour erred at [138] and [139, first sentence]. His Honour's formulation is wrong in law in that it ignores the abrogation of the rules in Griffiths v Kerkemeyer by s5 of the Common Law (Miscellaneous Actions) Act 1986. The error complained of is that the plaintiff is entitled to damages based on the need even though he has not incurred and may not incur, any expense [139]. This formulation is then relied upon and itself informs the allowances for:
48 Paragraph [138] of his Honour's reasons, and the first sentence of par[139], read as follows:
"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] HCA 54; (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 [(1957) [1956] HCA 66; 96 CLR 73] has not been expressly overruled, but Griffiths v Kerkemeyer [(1977) [1977] HCA 45; 139 CLR 161] 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."
49 This ground overstates the impact of the Common Law (Miscellaneous Actions) Act 1986, s5, which provided:
"An award of damages that relates to personal injury of a person shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance -
(a) which have been or are to be provided by another person to the person in whose favour the award is made; and
(b) for which the person in whose favour the award is made has not paid or is not liable to pay."
50 The Common Law (Miscellaneous Actions) Act 1986 was repealed by the Civil Liability Amendment Act 2005, which inserted into the Civil Liability Act 2002 the following provisions with regard to gratuitous services:
In this Act, unless the contrary intention appears -
future loss means all or any of the following:
gratuitous services means services of a domestic nature or services relating to nursing or attendance provided to a person for which that person does not pay or is not liable to pay;
28A Discount rate applicable to certain damages
If an award of damages is to include any component assessed as a lump sum for future loss, the present value of that future loss is to be qualified by adopting -
(b) if another discount rate is prescribed, that other discount rate.
(1) Damages for gratuitous services may be awarded in respect of gratuitous services required by the person as a result of injuries to that person caused by the negligence of another person.
(2) A person may not recover damages for gratuitous services unless the services have been provided, or are likely to be provided, to that person for more than 6 hours per week and for more than 6 consecutive months.
(3) In calculating damages for gratuitous services -
(a) the hourly rate is not to exceed one-fortieth of adult average weekly earnings; and
(b) the weekly rate is not to exceed adult average weekly earnings.
28C Abolition of awards for gratuitous services in respect of claims under Motor Accidents (Liabilities and Compensation) Act 1973
An award of damages relating to personal injury to which Part III of the Motor Accidents (Liabilities and Compensation) Act 1973 applies is not to include compensation for gratuitous services required by a person as a result of injuries to that person caused by the negligence of another person."
51 Sections 28B and 28C are in that Act, Pt7. That Act, s24, provides that, subject to one exception there specified, Pt7 applies in relation to an award of damages for personal injury or death resulting from a breach of duty.
52 As can be seen from a cursory perusal of the now repealed Common Law (Miscellaneous Actions) Act, s5, it did not on its face abrogate the rules in Griffiths v Kerkemeyer. It provided no more than that an award of damages for personal injuries "shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance" provided or to be provided by another person for which the claimant "has not paid or is not liable to pay". Prior to the enactment of s5 damages of this nature were recoverable pursuant to the law as enunciated in Griffiths v Kerkemeyer. The effect of s5 was to significantly confine the damages that could be recovered pursuant to that decision. However, it is not correct to say, as this ground does, that s5 abrogated the rules in Griffiths v Kerkemeyer. The repeal of s5 by the Civil Liability Amendment Act 2005 removed the restrictions placed by that section on the recovery of damages for gratuitous services. However, the Civil Liability Amendment Act contemporaneously inserted in the Civil Liability Act the sections to which we have referred. The Civil Liability Act, s28B, now limits a claimant's entitlement to damages for gratuitous services as there defined to circumstances which include a requirement that the service has been or is likely to be provided for more than six hours per week and for more than six consecutive months. (Hill v Forrester (2010) 79 NSWLR 470 is an informative decision on the interpretation of a statutory provision in similar terms to s28B(2).)
53 His Honour was plainly aware of s5. If ground 3 was intended to suggest otherwise, that suggestion was incorrect. The appellant's claim included a claim for damages in respect of his mother's loss of wages whilst attending on him in Melbourne, that is, a claim for damages pursuant to Wilson v McLeay [1961] HCA 56; (1961) 106 CLR 523. At pars[150] to [154] of his decision, his Honour dealt with this claim and refused to allow it on the basis that it was excluded by the application of s5. His Honour made a similar ruling in par[267] when rejecting a portion of a claim made for travelling expenses.
54 The items of damage that are the subject of this ground are miscellaneous items 2, 3, 4, 7 and 13 which are as follows.
55 Each of these items is an expense incurred by the appellant's parents in addressing a need of the appellant arising from his injuries. As drawn, this ground also relates to awards of damage in relation to domestic care, attendant care and gardening and home maintenance. Mr Read SC advanced the respondent's submissions on this appeal in relation to damages. In his written submissions he said that this ground was most relevant on the assessment of future domestic and attendant care (gardening) but that these items were the subject of ground 4 of the cross-appeal. He did not refer to these items in the course of his oral submissions in support of ground 3, and he did not refer to or expand on his written submission that ground 3 was most relevant to these items in the course of his oral submissions in support of ground 4. We will deal with these items in the same manner. The items that we will address on ground 3 are the specified miscellaneous expenses.
56 For relevant purposes an injury attracts damages when it creates a need that would not otherwise exist. In Teubner v Humble [1963] HCA 11; (1962) 108 CLR 491 at 505, Windeyer J said:
"Broadly speaking there are, it seems to me, three ways in which a personal injury can give rise to damage: First, it may destroy or diminish, permanently or for a time, an existing capacity, mental or physical: Secondly, it may create needs that would not otherwise exist: Thirdly, it may produce physical pain and suffering."
57 Again, broadly speaking, it can be said that prior to Griffiths v Kerkemeyer a pre-condition to a claimant's establishment of an entitlement to damages for an injury created need was that the claimant was or would be legally obliged to meet the cost of satisfying that need.
58 Blundell v Musgrave [1956] HCA 66; (1956) 96 CLR 73 was taken to be authority that in order to recover damages for that which had been provided to a claimant there had to be either a legal obligation, or at least a strong moral or social obligation on the claimant to pay for the same. See Dixon CJ at 79 and Fullagar J at 92. There were however authorities to a contrary effect in relation to some similar but somewhat different claims for damages. Relevantly, there were authorities to the effect that on a variety of different bases a claimant could recover damages referable to the cost of meeting a need of the claimant that had been paid for by a third party, usually a parent or relative. Examples in relation to home alteration costs are Matheson v Union Assurance Society Ltd [1960] SASR 345; Jackson v Jackson [1970] 2 NSWR 466; Preston v Mercantile Mutual Insurance Co Ltd [1971] SASR 221 and Richardson v Schultz (1980) 25 SASR 3. Examples in relation to medical expenses are: Cutcheon v Davis [1964] QWN 4, and Gillespie v Steer (1973) 6 SASR 200.
59 The three members of the High Court who decided Griffiths v Kerkemeyer all had regard to the decision in Donnelly v Joyce [1973] EWCA Civ 2; [1974] 1 QB 454. That decision dealt with an appeal against an infant plaintiff's recovery of damages in respect of gratuitous services provided by her mother. At 461 - 462, Davies and Megaw LJJ and Walton J said:
"Mr Hamilton's first proposition is that a plaintiff cannot succeed in a claim in relation to someone else's loss unless the plaintiff is under a legal liability to reimburse that other person. ...
We do not agree with the proposition, inherent in Mr Hamilton's submission, that the plaintiff's claim, in circumstances such as the present. is properly to be regarded as being, to use his phrase, 'in relation to someone else's loss,' merely because someone else has provided to, or for the benefit of, the plaintiff - the injured person - the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrongdoing. The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss.
Hence it does not matter, so far as the defendant's liability to the plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution to him from some other person whom we shall call the 'provider'; it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or because of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do. The question of legal liability to reimburse the provider may be very relevant to the question of the legal right of the provider to recover from the plaintiff. That may depend on the nature of the liability imposed by the general law or the particular agreement. But it is not a matter which affects the right of the plaintiff against the wrongdoer."
60 The decision in Donnelly v Joyce was followed by Bray CJ, Mitchell and Zelling JJ in Beck v Farrelly (1975) 13 SASR 17.
61 In the quoted passage from Donnelly v Joyce, the Court of Appeal expressly rejected the proposition that it was only where a claimant was under a legal liability to reimburse the provider of a needed service, or the payer for a needed item, that the claimant could recover damages for the same. This was said to be because the claimant's loss was not the expenditure of money to purchase the needed item, or pay for the needed service, but the existence of the need for the item or service.
62 In Griffiths v Kerkemeyer, Stephen and Mason JJ both adopted the above passage from Donnelly v Joyce. Mason J at 192 said that the passage accurately expressed the law, and at 193 his Honour said that the old view based on the proposition that a claimant was not entitled to recover for services provided to the claimant unless the claimant was under a legal liability to pay for the services was no longer acceptable. Stephen J, at 173, said of the passage that the critical point was that when a claimant, as a result of accident caused injuries, needed goods or services, that need was a loss suffered by the claimant for which damages may be recovered and that it was irrelevant to that entitlement that the need was satisfied by the gratuitous supply of the needed goods or services. At 175, his Honour reiterated that the principle in Donnelly v Joyce enabled a claimant to recover damages for accident caused needs, notwithstanding that the claimant was gratuitously provided with the necessary funds, services or goods to satisfy the need. The other member of the Court, Gibbs J, said at 168 that the conclusion reached in Donnelly v Joyce was correct. However, his Honour qualified his acceptance of that conclusion by saying that a claimant could not recover damages in respect of the need unless the satisfaction of the need was or may be productive of financial loss, but that the fact that the service had been or would be provided gratuitously was not conclusive of that question. With regard to Blundell v Musgrave, at 167 his Honour said that it was now open to the Court to hold that it should not be applied where services were voluntarily provided by relatives or friends.
63 All the expenses that are the subject of this ground of appeal were incurred by the appellant's parents in respect to needs of the appellant arising from his injuries. Accordingly, consistently with the decision of all three judges in Griffiths v Kerkemeyer, these expenses are recoverable by the appellant.
64 For present purposes, the difference between the approach taken in Griffiths v Kerkemeyer by Gibbs J to that taken by Stephen and Mason JJ is of no consequence. It is however the approach of the latter two judges that is the law. In Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327, Mason CJ, Toohey and McHugh JJ addressed the decision in Griffiths v Kerkemeyer at 331 - 333. Their Honours noted that the view of Gibbs J was more restrictive than that of Stephen and Mason JJ, and said that it should now be accepted that, consistent with the views of Stephen and Mason JJ, the true basis of a claimant's entitlement to recover damages for services is the need of the claimant, and that in order to recover damages a claimant does not have to show, as Gibbs J held, that the need was or may be productive of financial loss. Brennan J at 340, and Gaudron J at 347, agreed. The other two members of the court, Deane and Dawson JJ at 342 simply cited Griffiths v Kerkemeyer and Donnelly v Joyce as authority that the basis upon which the claimant was entitled to damages for future nursing care was the claimant's entitlement to be compensated for any loss of capacity that was caused by the accident. See also Grincelis v House [2000] HCA 42; (2000) 201 CLR 321 at 327.
65 In CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at par[27], Gleeson CJ, Gummow and Heydon JJ said that Griffiths v Kerkemeyer was anomalous in departing from the usual rule that damages, other than damages payable for loss not measurable in money, are not recoverable for an injury unless the injury produces actual financial loss. At par[35] they said:
"Griffiths v Kerkemeyer is well-established, no challenge was made to it in this case, and nothing in this judgment is intended to encourage any future challenge. But to borrow the words of Lord Reid in another context, it is in some ways an 'undesirable anomaly', and it should not be applied to 'any class of case where its use [is] not covered by authority'."
Callinan J at par[122], agreed with Gleeson CJ, Gummow and Heydon JJ. McHugh J at pars[91], [100] and [113], expressed similar views to those expressed in the joint judgment. So, whilst this decision confirms the authority of Griffiths v Kerkemeyer, it makes it clear that it should not be extended beyond the areas in which it has been applied. To allow the items of damage that are the subject of this ground of appeal does not involve any extension of Griffiths v Kerkemeyer.
66 Express recognition that Griffiths v Kerkemeyer involved a departure from the decision in Blundell v Musgrave is to be found in the decision of Toohey, McHugh, Gummow and Kirby JJ in Kars v Kars [1996] HCA 37; (1996) 187 CLR 354 at 369. The other member of that court, Dawson J, at 358, also said the decision in Griffiths v Kerkemeyer departed from Blundell v Musgrave, and at 359 his Honour said that the decision in Griffiths v Kerkemeyer was only made possible by abandoning the rule that in an action for damages for tort, a claim for the reasonable cost of required services could only succeed if the claimant had a legal (or perhaps moral or social) obligation to pay for them.
67 The foregoing demonstrates that with regard to the miscellaneous items of damage that are the subject of this ground of appeal, and the range of damages that are covered by Griffiths v Kerkemeyer, Porter J did not err in concluding that the appellant was entitled to recover damages on the basis of need even though he had not incurred and may not incur any expenses referrable to the same.
68 What then was the impact of the Common Law (Miscellaneous Actions) Act, s5? That section was directed to a particular form of needs based damages, that is, those in respect of "the value of services of a domestic nature or services relating to nursing and attendance ... provided by another person ... for which [the claimant] ... has not paid or is not liable to pay". Insofar as damages of this nature are recoverable pursuant to Griffiths v Kerkemeyer, s5 impacted significantly on the damages that could be recovered pursuant to that decision.
69 As to whether s5 also applied to damages of the nature of those that are the subject of this ground, that is, expenses incurred by the appellant's parents in respect to needs of the appellant arising from his injuries, the Grimsey decisions are of assistance. In Grimsey v Southern Regional Health Board [1997] TASSC 103; (1997) 7 Tas R 67, Wright J addressed the meaning of s5. At 105, his Honour said a submission that s5 was limited in its scope to "services" of the kinds specified in the section was plainly correct, and thus it did not apply to the provision of facilities or goods. His Honour said of the phrase, "services of a domestic nature" that it obviously relates to and is intended to apply in respect of household chores. His Honour also referred to the difficulty of interpreting the phrase "services relating to nursing and attendance" and concluded at 106: "It is therefore wide enough to cover any kind of 'attendance' upon an injured individual which arises from the injuries sustained".
70 In Southern Regional Health Board v Grimsey (1998) 8 Tas R 116 at 190, Cox CJ, Underwood and Crawford JJ said that Wright J's conclusion that s5 is limited in scope to "services", and does not apply to the provision of facilities or goods was clearly correct. Their Honours also referred with apparent favour to what Wright J had said in relation to the phrases "services of a domestic nature" and "services relating to nursing and attendance".
71 Consistently with the Grimsey decisions and our reading of s5, we are quite unable to expand the meaning of the term "services" as used in that section to encompass financial services such as paying for a claimant's needs, or giving a claimant the funds to pay for a need. The reference in s5 to the "value of services" illustrates that it was directed to gratuitous services of the nature of attendances of a domestic nature and nursing, as distinct from expenses incurred on behalf of a claimant.
72 In so concluding we should say that we have reached our decision without any reliance on the approach espoused in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at par[23], where Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said that:
"The approach of the courts has consistently been to require very clear legislative intent before treating a statutory provision as taking away common law rights of a plaintiff, where there is an alternative construction available."
We have also paid no regard to the second reading speech in the House of Assembly when the acting Minister introduced the Common Law (Miscellaneous Actions) Bill 1986, as there is nothing ambiguous or obscure about s5, and there is no manifest uncertainty in the interpretation we have adopted. In any event, it seems that the speech would not have assisted us. In Grimsey v Southern Regional Health Board at 105, Wright J said he was unable to see how anything in the speech was capable of assisting his interpretation of s5.
Possibility of dramatic deterioration (ground 6 of the cross-appeal)
74 We will deal with ground 6 of the cross-appeal at this point because its outcome is relevant to ground 4 of the cross-appeal. Ground 6 concerns the ways in which the learned trial judge took into account the possibility of the appellant's condition deteriorating dramatically at some future time. The ground reads as follows:
"Having made allowance for dramatic deterioration at [147] by offsetting it against the use of discount figures with no allowance for mortality His Honour erred at [220] and [264] in taking the possibility of dramatic deterioration into account."
75 There was evidence at the trial to the effect that there was a small chance of a dramatic deterioration in the appellant's medical condition at some time in the future. The evidence established that the appellant was at risk of quite a number of different medical problems developing. These included pressure sores, a spinal cyst or "post-traumatic syrinx", recurrent urinary tract infections, severe bowel dysfunction, depression or other psychological sequelae, and damage to the urethra. Generally speaking, the evidence established that these conditions were treatable, though perhaps at great expense, and perhaps requiring surgery. There was evidence of the likelihood of musculo-skeletal problems, probably by the time the appellant reached his mid-fifties. A consultant rehabilitation physician, Dr Slatyer, gave evidence that there was a "low probability" of the appellant becoming a quadriplegic, with the result that the costs of his care would become astronomically higher. Another witness, Professor Brown, said that a deterioration in neurologic condition occurs in approximately 2% of patients. Evidently no prediction could be made as to when such a deterioration might occur, nor as to the likely severity of such a deterioration.
76 At par[147] of his reasons, the learned trial judge referred to the need, in assessing damages, to take into account both the possibility of the early death of the appellant and the possibility of dramatic deterioration in his medical condition. He concluded that these two factors could, at least to some extent, be set off against one another. The wording of ground 6 suggests that his Honour treated these two factors as cancelling one another out altogether, but that is not a correct analysis of what he said in par[147]. He said this:
"For many of the heads of damage which involve claims for life, the particulars [ie the particulars of the appellant's claim] 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 lifespan, 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."
77 In that paragraph, his Honour indicated that he would not be allowing any discount for the contingency of early death, on the basis that the need to allow for that contingency could be balanced against the need to take into account the possibility of dramatic deterioration. But he did not say that the two contingencies absolutely cancelled one another out. He indicated that the contingency of early death was cancelled out, but that the contingency of a catastrophic outcome was cancelled out "to a very large extent at least", not necessarily altogether.
78 In par[220] of his reasons, the learned trial judge referred to a number of factors that he was taking into account in assessing damages in respect of the future cost of domestic services, attendant care, gardening and home maintenance. After referring to a number of other factors, he said this:
"... 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."
79 There is no reason to think that his Honour attached too much or too little weight to the contingency of a catastrophic deterioration when assessing damages in respect of the future cost of domestic services, attendant care, gardening and home maintenance.
80 The appellant claimed $75,000 as a separate head of damage in respect of "contingency medical and associated expenses". This claim was additional to specific claims in relation to a wide range of medical, surgical, hospital and related expenses which took into account various potential future medical problems. His Honour considered the claim for $75,000 at par[264] of his reasons, and allowed only $5,000, saying this:
"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 ['Future medical, therapy and counselling requirements']. 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."
81 At par[220] his Honour said only that he was bearing in mind the possibility of dramatic deterioration. At par[264] he did not refer specifically to the contingency of dramatic deterioration, but referred in general terms to a wide range of adverse contingencies including "significant risks of adverse medical conditions and complications developing in relation to a range of matters relating to health and bodily function". It is fair to regard the risk of a dramatic or catastrophic deterioration as one of the risks that his Honour was referring to.
82 When one considers pars[147], [220] and [264] together, it is clear that his Honour proceeded on the basis that the contingency of a catastrophic outcome was only partly, not wholly, cancelled out by the contingency of early death.
83 The validity of his Honour's approach can be evaluated by undertaking some calculations. The multiplier of 748 referred to in par[147] represents the present value of $1 per week for 52 years (the appellant's life expectancy at age 27) invested at 7% compound interest with no allowance for mortality. The equivalent figure, making allowance for mortality, is 728.7. See Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, at 684 and 691. From these figures it can be calculated that an appropriate discount to allow for the contingency of early death is 2.58%. (The smaller multiplier is 2.58% less than the larger one.)
84 For the purposes of comparison, it is useful to calculate the adjustments to the damages for a head of future expenditure that would be appropriate to allow for, say, a 2% chance of a 600% increase in expenditure commencing in 15 or 20 years' time. We have drawn the figure of 2% from Professor Brown's evidence that a deterioration in neurologic condition occurs in approximately 2% of patients. We have chosen the figure of 600% simply for the purposes of illustration, in the light of Dr Slatyer's evidence that quadriplegia would result in care costs becoming astronomically higher. We have chosen the figures of 15 and 20 years simply for the purposes of illustration. The appropriate calculations are as follows:
The multipliers of 0.3624 and 0.2584 are derived from the 7% table in Luntz, above, at 681. For example, if one desires to invest an amount which will earn interest at 7% and yield a particular amount in 15 years' time, one must multiply that final amount by 0.3624 in order to calculate the sum that needs to be invested now.
85 Of course the figures of 2%, 600%, 15 years and 20 years are only figures that have been chosen for the purposes of illustration. Assuming the appropriateness of those figures, these calculations indicate that it was not unreasonable for his Honour to regard the contingency of a catastrophic outcome as cancelled out partly, but not wholly, by the contingency of early death.
86 Counsel for the respondent submitted that the learned trial judge erred in allowing $5,000 at par[264] for "contingency medical and associated expenses". He argued that his Honour should have allowed nothing under that head. However it has not been demonstrated that every possible category of expenditure was separately and specifically claimed by the appellant. The allowance of $5,000 was modest and conservative, especially when one takes into account the fact that it was also intended to cover miscellaneous expenditure incurred during the period of about 10 months between trial and judgment. We are not persuaded that his Honour should have awarded a figure less than $5,000, or nothing at all, in respect of this claim.
87 For these reasons, ground 6 of the cross-appeal must fail.
Domestic care, attendant care, gardening and home maintenance (ground 4 of the cross-appeal)
88 Ground 4 of the amended notice of cross-appeal, excluding a part of ground 4(d) that was abandoned, reads as follows:
"4 His Honour erred in fact and in law at [221] in making the allowances he did for domestic care, attendant care, gardening and home maintenance. The errors are
(a) In using the plaintiff's particulars of claim as a commencement point as they are based directly upon the views of Ms French which were not accepted by His Honour [219] [228].
(b) In applying a discount of 1/3rd to the plaintiffs [sic] particulars of claim for all factors adverse to the claim as such discount did not adequately reflect the evidence as to those and other factors.
(c) In using as an alternate basis for assessing the claim at [221] the number of hours used as the evidence did not support a finding that there was any reasonable likelihood that the plaintiff would reasonably need and have to pay for the hours relied upon.
(d) In making the allowance he did for expenses to be incurred before the early 50's [sic], as the evidence (eg [115] [212]) did not permit of a finding that the Plaintiff's condition would reasonably warrant such expenses nor of the finding that the degree of probability that such expenses might be incurred was such as to permit the sum allowed. This error also affects the allowances for the second and third periods for domestic care and attendant care [221] ...".
89 With regard to the damages that are the subject of this ground, his Honour said:
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 [sic] 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 to 60 ($178,379) and last is post-50 [sic] 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.
1 Whilst residing at Riverview Parade, Rosetta - estimate 2 years to in or about April 2013
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.
2 Additional requirements when the Plaintiff resides independently in his own home - anticipated to commence in or about April 2013
Domestic assistance 3.5 hours/week x 52 weeks/year x 32.32/hour
Garden maintenance assistance 4 hours/month 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.
3 Additional assistance required commensurate with deterioration in functional capacity from at or about the age of 50 years
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.
4 Additional assistance required at or about the age of 60 due to deterioration in functional capacity precluding ability to transfer independently
(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
90 The respondent contends that his Honour erred in using the appellant's particulars of claim as a commencement point in allowing these damages as the particulars are based directly upon the views of Ms French, "which were not accepted by his Honour". Implicit in this contention is the suggestion that his Honour rejected Ms French's views entirely. That is not so. In support of this contention the respondent relies on what his Honour said in pars[219] and [228] of his decision. The first of these paragraphs is set out above. The second, par[228], details his Honour's conclusions in relation to the appellant's claim for damages with respect to special equipment. This aspect of his Honour's decision has not been appealed by the respondent. However, both this aspect of his Honour's decision and a portion of his decision that deals with domestic services and attendant care, which is subject to appeal, were particularised and claimed by the appellant on the basis of that which was said in Ms French's recommendations. Not surprisingly as the appellant's claims in this regard were advanced on the basis of Ms French's report, the relevant evidence was given and dealt with accordingly.
91 The claim with respect to special equipment was dealt with in pars[225] to [230] of his Honour's decision. In those paragraphs his Honour dealt with the evidence of Ms French, and differing views with regard to her evidence expressed by Dr Burke and Mrs Groom as to the items claimed. His Honour said there was no doubt there was a need for many of the items, some were ideal requirements rather than reasonably needed, some were not warranted on a cost/benefit analysis and some would not be used, or may be not used for a very long time. His Honour noted that underpinning much of the approach of Ms French was her interpretation of need and that her report often spoke of a benefit to the appellant from an item rather than a need for it although, in many cases, there was little practical difference. His Honour also noted that some of the needs seemed to be contingent. His Honour made an allowance of two thirds of her costings of current requirements, and one half of her costings for additional requirements commencing at the age of 50. In doing so his Honour rejected some aspects of Ms French's recommendations. That his Honour did not accept Ms French's evidence in its entirety does not mean that he did not accept it in part. It is clear from his Honour's reasons that he accepted much of what Ms French said.
92 The same goes for his Honour's reasons in relation to the appellant's claim in respect of domestic services and attendant care. At par[207] his Honour noted that the four stages of this claim and the particulars of it were taken from Ms French's recommendations, that to a large extent they were supported by the evidence of Mrs Groom, and that in general they were supported by Dr Slatyer as to the levels of care that were appropriate if the appellant's parents were not available.
93 At par[210], his Honour said that the fundamental issue was whether the time estimates and costings were reasonable to meet the injury created needs. At par[211], his Honour noted that, with regard to the various carer tasks, Ms French's approach was to avoid constant reliance by the appellant on other people. At par[202], his Honour referred to a report from Dr Burke that was critical of Ms French's assessments and noted some points made by Dr Burke. His Honour dealt with the evidence of Ms Harback with regard to the level of support paraplegics tended to need in par[213]. At par[215], his Honour made findings about the rates claimed for the different forms of assistance and made findings with regard to the same that were more in accord with Mrs Groom's evidence because she had greater familiarity with the local environment.
94 In pars[216] to [217], his Honour dealt with the first period of this aspect of the claim, that being the period of two years whilst the appellant was still at home. Of the appellant's mother's evidence that she spent about 2½ hours per week, his Honour said he strongly suspected that this was a significant underestimation. His Honour adverted to other matters and allowed a total of $12,000 for this period.
95 At par[218], his Honour said that with regard to the remaining periods of the claim, the issue was whether the projections for care reflected the reasonable needs for the appellant, and in this respect he said he would accept Dr Slatyer's view that a reasonable need would include such care as might serve to preserve body functioning. We agree with that approach.
96 At par[219] his Honour explained that he did not accept Ms French's estimates in their entirety as to a certain extent the stated requirements fell within the ideal category and were more theoretical than realistic. Again, we agree with his Honour.
97 In the light of these and other observations, at par[221] his Honour went on to say that one way of approaching the issue was to apply a discount of one third for all the factors adverse to the claim. His Honour also addressed an alternative approach. Again, whilst it is quite clear that his Honour did not accept Ms French's evidence in its entirety, he accepted much of it as her evidence was the backdrop against which much of the expert evidence in relation to this aspect of the claim for damages was given. It was entirely appropriate that his Honour's commencement point in considering this claim was Ms French's evidence. Ground 4(a), which asserts that he erred by doing so, must fail.
98 The amounts claimed by the appellant in respect of expenses for domestic care, attendant care, gardening and home maintenance, and the amounts awarded by his Honour, in respect of the four periods referred to in the particulars were as follows:
Second period (from two years after judgment until age 50)
99 The respondent does not contend that the sums allowed in respect of the first and fourth periods were excessive. Whilst this means that we will focus on the second and third periods, it is necessary to begin by addressing the first period because of the cumulative manner in which the claim for each period was formulated. All the items claimed in the first period are included in the opening item for the second period. Again, all the items claimed in the second period (which include all the items claimed in the first period) are included in the opening item for the third period.
100 In par[217] of his reasons, the learned trial judge allowed $12,000 for the first period, the claim for which totalled $122,401. In effect he discounted this claim by about 90%. In the same paragraph he said referrable to the first period that at the very least an allowance should be made for 10 hours per week care for eight weeks in the next two years, and additionally, some reasonable allowance should be made for the possibility that the appellant's mother would not be available to him. In par[215] the learned trial judge found that the appropriate hourly rate for attendant care was $33. Relating that hourly rate to the award of $12,000, and ascribing no part of it to domestic assistance, the award reflects a need for less than four hours attendant care per week. The calculation that demonstrates this is four hours per week at the rate of $33 per hour times 98 equals $12,936.
101 The explanation for the modest amount of the award for the first period is that it covers the interval before the occasion when it was expected that the appellant would live independently from his parents and it was concluded that during this interval his mother would continue to care for him gratuitously. Moreover, the appellant had coped without attendant care for 8½ years prior to the first period.
102 As to the second period, the learned trial judge reached his destination by two parallel routes in par[221] of his reasons, quoted above. First, taking a broad-brush approach, he concluded that a reduction of one third "would not be unreasonable". The amount arrived at by this approach, that is, reducing $720,882 by 33.33%, is $480,000 rounded off. The difficulty with this approach is that the opening item in the second period, weekly costs of $2,148.99, is imported from the first period. That item constitutes almost 90% of the claim for the second period. In making the award for the first period his Honour had discounted that item by about 90%. It is not apparent why it was appropriate to discount that item by 90% for the first period, but only 33.33% for the second period.
103 The critical difference between the first period and the second period, is that during the second period the appellant would no longer be living at his parents' property and his mother's gratuitous domestic assistance would no longer be so readily available. In the course of her evidence she estimated that she spent about 2½ hours per week providing domestic assistance to the appellant. His Honour said of that estimate that he strongly suspected that it was a significant underestimation. We are in no doubt that this is so. Her evidence was that she went to his flat every couple of days to clean it, and thoroughly cleaned it once a week. The cleaning involved vacuuming, washing the floors, scrubbing the bathroom and trying to remove marks from the walls left by the wheelchair, as well as monitoring the fridge. She cooked for the appellant every evening and made his bed on a daily basis. She changed the bedding and did all his washing and ironing. She occasionally vacuumed his car. Her evidence demonstrated that the appellant had a daily need for domestic assistance. Upon his move from his parents' property it was a reasonable conclusion that he would need domestic assistance for one hour a day as was recommended by Ms French and claimed by the appellant.
104 The second route followed by his Honour involved a more itemised approach. He made findings that a reasonable allowance should be "roughly based" on 10 hours of domestic assistance per week and 14 hours of attendant care per week. The claim for domestic assistance and attendant care during the second period was based on a need for domestic assistance for 7 hours per week, and a need for attendant care for 17.5 hours per week. Those figures are not readily obvious from the particulars reproduced above. In relation to domestic assistance, the particulars asserted a need during the first period for 2 hours' assistance per week for meal preparation and cooking, and a further 1.5 hours per week for other domestic activities, a total of 3.5 hours per week for domestic assistance. This need is imported into the second period by the opening item to the period. The next item is a further claim for 3.5 hours per week for domestic assistance, making a total of 7 hours per week during the second period. In respect of attendant care, the particulars asserted a need during the first period for 2.5 hours' care per day, and more during holiday periods. Putting the increase during the holiday periods to one side, this totals 17.5 hours per week. Again this need is imported into the second period by the opening item to that period. No additional claim is made for attendant care during the second period.
105 In respect of domestic assistance, his Honour proceeded on the basis that 10 hours per week was a reasonable allowance, when Ms French's evidence was that 7 hours' care per week was needed, and damages were claimed accordingly. There is nothing in his reasons to indicate that he realised that he was allowing more hours per week for domestic assistance than the appellant had been asking for. In respect of attendant care, his Honour's figure of 14 hours per week represented 80% of what Ms French said was necessary, and what the appellant was claiming to be necessary. This claim was substantially rejected in relation to the first period. As has been explained, at best the award of $12,000 for the first period reflected a need for less than four hours' attendant care per week. There is no clear reason why this need increased so markedly. Moreover, his Honour had found at par[219] of his reasons that he was not satisfied that the hours set out in the particulars properly reflected reasonably anticipated needs and that, as to Ms French's methodology, "to a certain extent the stated requirements fall within the 'ideal' category". Having regard to these matters, we consider that to allow 10 hours per week for domestic assistance was an error, and the number of hours allowed for attendant care should have been substantially less than 80% of the number of hours calculated by reference to Ms French's opinions and methodology.
106 All the items claimed in the first and second periods are included in the opening item for the third period. The claim for this period also includes 3 additional hours of domestic assistance per week, and 2.5 additional hours of attendant care per day. The figure of $130,000 allowed by the learned trial judge represents a little under 73% of the appellant's claim. It is inevitable that this award is founded in part on the same errors that we have identified referable to the award for the second period.
107 In order to establish the magnitude of the impact of these errors upon the appellant's total damages, we must re-assess the awards for the two periods in question. It is only if the errors have brought about differences in the amount of these awards that make the total amount of the appellant's damages manifestly excessive that the cross-appeal should succeed, Motor Accidents Insurance Board v Richards [1991] TASSC 98; (1991) 14 Tas R 221, pars[7] to [17], and Murfet v AAPC Australia Pty Ltd [1999] TASSC 6, pars[20] and [42].
Re-assessment of damages for future domestic services, etc
108 A re-assessment of the damages for future expenditure on domestic services, attendant care, gardening and home maintenance for the two periods under consideration involves a number of complicating factors.
109 Fundamentally, there is a need to make some assessment as to the extent to which the appellant will need to pay for services of the types in question. The second particularised period is a long one, extending from 2013 until the appellant's 50th birthday in October 2033 - a period of about 20½ years. His need for the services in question will almost certainly be much greater at the end of that period than at the beginning. In respect of the first particularised period, the learned trial judge allowed only about 10% of the appellant's claim under this head. His need for the relevant services will increase significantly at or about the beginning of the second particularised period because, at or about that time, he proposes to leave his parents' property and commence living independently. He gave evidence of wanting to live independently, have privacy, and not be spoiled by his mother. It may be that, sooner or later, he will marry or enter into a marriage-like relationship. Under cross-examination he agreed that he held "a real desire to enter into a loving sharing relationship that might lead to a family". In view of his loss of sexual function it is difficult to be too optimistic for him about this. Whilst it may be that, to an extent, his needs for domestic assistance and attendant care will on occasions be fulfilled gratuitously by a wife or partner, it must also be recognised that a marriage-like relationship will be severely tested by some of his care needs, such as those related to bowel and urinary incontinence.
110 The learned trial judge undertook a thorough review of the medical evidence at pars[104] - [134] of his reasons. There is no need for us to repeat his findings as to the appellant's symptoms and prognosis. We are taking those findings into account for the purpose of this re-assessment of damages. There are various factors that could bring about a deterioration in the appellant's condition, perhaps temporarily but perhaps permanently. There are all sorts of possibilities as to the degree of seriousness of a deterioration. There is a very small chance of a catastrophic deterioration. As we noted when dealing with ground 6 of the cross-appeal, the risk of a catastrophic deterioration outweighs the need to take into account the possibility of early death. Like the learned trial judge, we will undertake a calculation using multipliers that do not take mortality into account. However we will take into account the possibility of early death, along with all other relevant factors.
111 We note that the learned trial judge made an uncontroversial finding at par[313] of his reasons that there was a relatively high degree of likelihood that, in the not too distant future, the appellant would, not unreasonably, reduce his working hours. It may be that the appellant will have less need to pay for domestic assistance and/or carers when and if he reduces his working hours.
112 In the particulars of the appellant's claim, the cost of attendant care has been claimed on the basis that the appellant would have to pay carers at higher hourly rates on weekends and public holidays. The learned trial judge did not make a finding as to whether or not higher hourly rates would ever be payable. Counsel for the respondent submitted to us that we should proceed on the basis that penalty rates were not payable. He relied on reports from a Hobart occupational therapist, Mrs Groom, that were tendered as exhibits at the trial. Mrs Groom made no mention of penalty rates when addressing the cost of attendant care services. Counsel for the respondent submitted that we should prefer her evidence to that of Ms French because Mrs Groom practises in Hobart, whereas Ms French practises in Melbourne. However, Ms French was not cross-examined as to this point at the trial. Also, it appears from her report of 13 March 2008 that she based her costings on figures supplied by a Tasmanian attendant care agency. Given the state of the evidence, and the unpredictability of future remuneration arrangements, we are not able to make a finding as to whether the appellant will ever have to pay penalty rates for attendant care on weekends and public holidays. There is a possibility that he will. That is an adverse contingency that we will take into account in re-assessing damages.
113 Taking into account that contingency and all the other contingencies relating to the appellant's likely needs for paid domestic assistance and paid attendant care, we think it reasonable, in relation to the second particularised period, to allow for the cost of 7 hours' domestic assistance per week and 7 hours' attendant care per week, as a starting point before considering the particularised claims in respect of training and holidays.
114 The appellant's claim as particularised includes a claim for 12 hours' training per year for attendant carers. We see no reason why the appellant should ever have to pay for the training of paid carers. We will allow nothing in respect of their training.
115 The appellant's claim as particularised also includes components for carers' remuneration and accommodation for four weeks' holiday per year on the mainland. At pars[231] - [236] of his reasons, the learned trial judge considered a related claim for a carer's airfares for interstate and overseas travel for wheelchair tennis tournaments. He allowed $45,000 under that head as the present value of the anticipated costs of an interstate trip every two years, as well as four overseas trips before the appellant's 50th birthday. There has been no challenge to the award under that head. We think it reasonable to make allowance for the remuneration and accommodation of a carer on a trip out of the State every second year of four weeks' duration. However, in doing so, we will also allow for the possibility that the carer accompanying the appellant on such a trip might be a wife, partner or friend who provides services gratuitously. We also recognise that during each week of any holiday period allowance has already been made for seven hours of domestic assistance and seven hours of attendant care. Ms French's figure for the mainland accommodation of an attendant carer is $276 per night. In adopting this generous figure, we are conscious that no allowance has been made for the airfares and similar expenses of an attendant carer.
116 In re-assessing these awards, we think it reasonable to adopt the findings made by the learned trial judge at par[215] of his reasons as to hourly rates. We will allow $30 per hour for domestic assistance, $33 per hour for attendant care, and $30 per hour for gardening and home maintenance work.
117 If the appellant were to take a paid carer on a holiday and use other local carers as well so that he received 24-hour care, it appears that the carers' remuneration and accommodation would cost the appellant as follows every two years:
28 sleepover shifts @ $121.28 per shift (Ms French's figure)
28 nights' accommodation @ $276 per night (Ms French's figure)
118 Whilst it would be unreasonable to expect the appellant to travel alone, we do not think it would be reasonable for him to incur the expense of 24-hour paid carers, except perhaps for a very occasional special trip. Paying regard to the matters we have mentioned, we think it reasonable to allow an average of $7,000 per annum in respect of holidays for attendant care and related accommodation, which is $135 per week.
119 The claim in respect of home maintenance assistance was based on a need for 20 hours' paid work per year. In the report on which that claim was based, Ms French said that the required assistance "would include guttering services and swimming pool maintenance". The appellant's claim included a very substantial component for home modifications. It was not asserted that he needed to have his own swimming pool. It would therefore be inappropriate to allow the full 20 hours per year. Under cross-examination, Ms French said that the clients that she and others worked with had on average between 10 and 20 hours of home maintenance per year, including the cleaning of windows and the doing of minor repairs.
120 As a separate head of damage, the appellant claimed $253,955 for general home maintenance. The learned trial judge considered this claim at pars[189] - [191] of his reasons, and allowed $5,000. It appears from par[189] of his reasons that this claim related to "wheelchair damage, potential for greater wear and tear to furniture due to transfers, greater need for heating and other needs".
121 In counsel for the respondent's written submissions as to damages, it was asserted that the learned trial judge should not have made any allowance for home maintenance at par[221] because he had already dealt with a claim for increased home maintenance at par[191]. We disagree. The claim for increased home maintenance dealt with at par[191] related to the sorts of maintenance that an uninjured householder ordinarily would not undertake personally, but would pay others to undertake. Damages were awarded because home modifications and wheelchair-related wear and tear would be likely to result in the appellant paying more for home maintenance than an ordinary uninjured householder would. The claim dealt with at par[221], on the other hand, related to the sorts of home maintenance that an uninjured householder would ordinarily attend to personally, but which the appellant would need to pay others to attend to because of his physical impairment.
122 Having regard to Ms French's evidence, we think it appropriate to allow for the cost of 15 hours' home maintenance per year under this head.
123 For these reasons, we would allow the cost of the following on a weekly basis in relation to the second particularised period:
Domestic assistance for 7 hours per week @ $30 per hour
Routine attendant care for 7 hours per week @ $33 per hour
Holiday attendant care, averaged out @ $135 per week
Gardening: 48 hours per year @ $30 per hour ($1,440 ÷ 52)
Adopting the multiplier of 505 used by the learned trial judge, the amount we would allow is calculated as follows: $613 x 505 = $309,565.
124 In respect of the third particularised period, from age 50 to age 60, Ms French's calculations were based on the appellant's need for domestic assistance increasing from 7 hours per week to 10 hours per week, and his need for attendant care increasing from 17.5 hours per week to 35 hours per week. We accept that there is likely to be a substantial increase in the appellant's needs during this period because of the medical evidence which suggests that many paraplegics suffer a significant deterioration in their symptoms during their fifties. However it is again necessary to take account of the factors that we have referred to. In respect of this period, we think it appropriate to allow for 10 hours' domestic assistance and 14 hours' attendant care each week. There was no suggestion that an increased allowance would be needed in respect of holidays, gardening or home maintenance. We therefore allow the following on a weekly basis:
Domestic assistance for 10 hours per week @ $30 per hour
Applying the multiplier of 83 used by his Honour, the amount we would allow for the third particularised period is as follows: $934 x 83 = $77,522.
125 We would assess the appellant's damages in respect of domestic services and attendant care as follows:
126 Our re-assessment would result in a reduction of $202,913 in the appellant's damages, before allowing for contributory negligence. The stand alone amount of such a reduction is, of course, large, albeit that it is less than 7% of the appellant's total award of damages. We have generally reviewed the other items of damages that make up his total award, and we are satisfied that there is no sufficient basis for offsetting the amount of the reduction that we would make by reason of the errors we have identified against other items of damage that are too low. We conclude that the total award of damages is manifestly excessive and should be reduced by $202,913.
Future hospital expenses (ground 5 of the cross-appeal)
"His Honour erred at [256] in allowing $50,000 for the cost of future hospitalisation. His Honour failed to give sufficient weight to
128 Paragraph [256] of the learned trial judge's reasons reads as follows:
"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."
129 The respondent's contentions are all set out in the ground of appeal. Counsel for the appellant argued that the award of $50,000 was too low, and that insufficient allowance was made for the possibility of a catastrophic deterioration in the appellant's condition.
130 If the appellant were hospitalised, he would save money on food, and possibly on the cost of domestic assistance and attendant care. In Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 586, Gibbs and Stephen JJ held that it was appropriate to make a reduction of 12% of the hospital expenses incurred in that case in order to allow for savings on board and lodging. In this case, it is true that the learned trial judge did not mention any savings during periods of hospitalisation. However it does not follow that his Honour overlooked that point. Once again, he took a broad-brush approach.
131 Given the complexities of the appellant's medical problems, we think it was appropriate to make allowance for a possible hospitalisation that had not been specifically allowed for. We think that $50,000 was a generous sum to allow under this head, but we do not think that it was so high as to be inappropriate or indicative of error. Ground 5 must therefore fail.
132 We have now dealt with all the grounds of the appeal and the cross-appeal. However, as we said in par[4] above, the appellant contends that the learned trial judge made a number of errors in assessing damages that are not the subject of grounds of appeal, and that this Court can and must re-assess his damages for the purpose of correcting those suggested errors. His counsel relied on the Supreme Court Civil Procedure Act, ss47 and 49, and on the decision of the Full Court of the Supreme Court of South Australia in Rendell v Paul (1979) 22 SASR 459. The relevant subsections in s47 read as follows:
(1) Subject to the provisions of this Act, a Full Court, on the hearing of every appeal, shall have and may exercise all the jurisdiction, powers, and duties of the Court, whether as to amendment or otherwise, and shall have power to draw inferences of fact not inconsistent with the findings of the jury, if any, and to affirm, reverse, or vary, as to all or some or any one of the parties, any judgment, order, or determination appealed from, and to give any judgment or make any order or determination which ought to have been given or made, and to grant a new trial in any cause or matter in which there has been a trial (whether with or without a jury), and to make such further or other order as the case may require.
(2) On the hearing of every appeal from a judgment given, or an order or other determination made, by a judge sitting without a jury, a Full Court shall have full power to review the judgment, order, or determination appealed from on questions of fact as well as law."
"49 Powers of Full Court where only part of judgment appealed from
All or any of the powers mentioned in sections 47 and 48 may be exercised notwithstanding that the appeal may be from part only of the judgment, order, or other determination appealed from; and such powers may be exercised in favour of any party to the cause or matter although such party may not have appealed from such judgment, order, or determination."
134 Rendell v Paul was an appeal by defendants against an assessment of damages in a personal injuries action. There was no cross-appeal. The appellants contended that the award for future economic loss was excessive. Counsel for the respondent argued that it was inadequate, and asked the Full Court to increase the judgment sum, which it did. The applicable rules of court, like our s47(1), empowered the Full Court "to draw inferences of the fact and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require." There was another provision in the applicable rules in very similar terms to our s49.
135 King CJ, with whom Walters and White JJ agreed, explained the basis for increasing the respondent's damages, notwithstanding the respondent not having cross-appealed, in the following paragraph at 463:
"In Falidis v Silvertop Taxi Service Pty Ltd [unreported 25 November 1968] the Full Court held that Order 58, Rule 14 enabled the Court, on a defendant's appeal on the ground that the damages were excessive, to substitute a greater award of damages for that made in the judgment appealed from. I think that we should follow that decision. It is, of course, in the discretion of the Court as to whether an argument in favour of increasing the damages will be entertained where there is no cross-appeal. Where a plaintiff desires to complain that the damages are insufficient he should appeal or cross-appeal as the case may be. If he fails to do so, he cannot assume that he will be allowed to raise the point on the defendant's appeal. Whether it is fair and just that he should be allowed to do so will depend upon the circumstances. In this case, the appellants did not oppose the raising of the point, because they desired to amend their notice of appeal to raise points which had emerged from cases decided since the filing of the notice of appeal. We therefore allowed Mr Gray to contend that the award of damages was inadequate."
136 We accept that our ss47(1) and 49 are indistinguishable from the South Australian rules that were applicable to that case. Counsel for the appellant argued that, in the light of that case, those provisions should be interpreted as conferring a discretion on the Full Court, whenever there is an appeal or cross-appeal against an award of damages, to entertain arguments that are not the subject of a ground of appeal or a ground of a cross-appeal. For present purposes we will accept, without deciding the point, that that is correct.
137 The appellant's contentions as to additional errors, not covered by any of his grounds of appeal, can be summarised as follows:
138 The Supreme Court Rules 2000, r657(4)(b), requires a notice of appeal to state "specifically and concisely the grounds of appeal". There are good reasons for appellants being required to specify their grounds of appeal, and to specify them at the time when an appeal is instituted. Every respondent needs to know, and know at an early stage, the fundamental contentions that will be advanced at the hearing of an appeal. Such knowledge is always necessary for the purpose of preparing submissions. Often a compromise may be possible before the appeal is heard, but the chances of compromise will be reduced if appellants are allowed to construct new arguments and advance new contentions unrelated to their original grounds of appeal. If appellants were allowed to add to their grounds of appeal willy nilly, without seeking leave to amend to add new grounds, appellate litigation could become very messy, unpredictable, and much more expensive. Counsel could easily be tempted to advance increasingly unmeritorious and increasingly trivial contentions, particularly in damages cases where an offer of compromise or a payment into court was seen as likely to become significant. For these reasons, we think that this Court should take a very cautious and conservative approach towards exercising the sort of discretion that the appellant seeks to invoke in this case, assuming that the discretion exists.
139 Surprise is not a problem in this case. The appellant's supplementary contentions were explained in many pages of detailed written argument before the hearing of the appeal, and fully argued at the hearing.
140 In our view each of the appellant's additional contentions either lacks merit, or concerns only a small claim, or both. There has been no unusual development while the appeal was pending, like the change in the case law referred to by King CJ in Rendell v Paul in the paragraph quoted above, that explains why the additional contentions were not the subject of grounds of appeal. In those circumstances, we are not persuaded that we should exercise any discretion to consider them. We have taken into account the contention in relation to the risk of a catastrophic deterioration in the appellant's health in re-assessing damages in consequence of ground 4 of the cross-appeal succeeding. The appellant's other supplementary contentions were not relevant to that re-assessment. It is therefore inappropriate for us to take them into account in re-assessing damages.
141 For the reasons stated, the appeal will be dismissed and the cross-appeal will be allowed. As a result of ground 4 of the cross-appeal succeeding, the appellant's gross damages will be reduced by $202,913 to $2,725,147. As his damages were reduced by 30% to allow for contributory negligence, this sum is reduced to $1,907,603, from which we deduct $209,305.36 for the scheduled benefits paid by the MAIB, leaving a judgment sum of $1,698,298.
Potts
Frost [2012] TASFC 6
(1997) 7 Tas R 67
(1998) 8 Tas R 116
(1977) 139 CLR 161
(1992) 175 CLR 327
(1961) 105 CLR 549
(1962) 108 CLR 541
(1978) 144 CLR 202
(2006) 14 VR 359
(1987) 10 NSWLR 247
(1985) 59 ALJR 492
(1996) 187 CLR 354
(2000) 201 CLR 321
(2005) 226 CLR 1
(2010) 79 NSWLR 470
(1961) 106 CLR 523
(1962) 108 CLR 491
(1956) 96 CLR 73
(1980) 25 SASR 3
(1973) 6 SASR 200
(1975) 13 SASR 17
(2006) 225 CLR 364
(1991) 14 Tas R 221
(1977) 138 CLR 563
(1979) 22 SASR 459