Radovanovic bhnf Radovanovic v Cutter & ACT [2004] ACTSC 9

Radovanovic bhnf Radovanovic v Cutter & ACT [2004] ACTSC 9 | Case summary | Zoe

[114]

21. Mrs Radovanovic gave evidence that she heard what Sister Alexander said to Dr Cutter in the course of that telephone call. Her recollection is that Sister Alexander told Dr Cutter that she (Mrs Radovanovic) was there, that she also said that Mrs Radovanovic had said that she had a heavy bleed at home, however there was only a slight bleed at the time and that she had no pain. Mrs Radovanovic further said that she felt put out because the tone that the nurse had used when she spoke to Dr Cutter was that she (Mrs Radovanovic) had said that she had had a heavy bleed at home as if she had imagined it. Although it was suggested that the set-up of the hospital would not have permitted Mrs Radovanovic to overhear the conversation that took place between Sister Alexander and Dr Cutter, I consider that I can rely upon this evidence from Mrs Radovanovic. There is a combination of factors at play here. What I suspect was the reticence of Sister Alexander to disturb Dr Cutter in relation to a patient who had presented without contractions and with no abnormal signs, taken with Dr Cutter's reliance upon and respect for the judgment of Sister Alexander as an experienced and competent midwife. It was put in argument that these factors may have minimised or did not register in Dr Cutter's mind the significance of the event which brought Mrs Radovanovic into the hospital and I am inclined to think that may have been the case. I consider that is significant that Sister Alexander did not, on Mrs Radovanovic's admission to the hospital, palpate her abdomen to ascertain the baby's position presumably because of the history of the bleed. That indicates positive consciousness of the information concerning the heavy bleed on Sister Alexander's part. Further, no evidence was given by either Sister Alexander or Dr Cutter as to the conversation that they had which indicated the position of the baby on admission although this information would normally be expected to be given and received. In the event, the consequence was that Dr Cutter did not know of or consider the significance of the bleed which had brought Mrs Radovanovic to the hospital, nor did he attend the hospital as a consequence of that telephone call.

[127]

24/3/80 Seen for post natal check where I was accused of negligence on the following grounds:

1. Because Mrs Radovanovic was a high risk she should have been an inpatient near term.

Note ultrasound on 5.7.79 ~ 7/52 gestation.

2. That Mrs Radovanovic bled heavily at home on night of admission and that I should not have relied on a trained midwife's assessment but should have come immediately to the hospital on her admission. They stated that the paediatrician told them.

(a) that a heavy bleed could not have occurred from a cervical suture.

(b) that the long delay between the commencement of the haemorrhage from the baby and the caesarean section caused the brain damage to the child; and

(c) If he knew how bad the baby was he would not have resuscitated it.

My comments are made in retrospect and my recollections of the time prior to being called are hazy. Certainly I can recall the details after being called to see the patient in great detail because of the drama and tragedy of the event which followed.

The patient was admitted to the delivery suite at 10.30 pm on 27 January 1980 and I was notified at 10.45 pm and was told of her presence and that:

(1) her BP [blood pressure] was 110/80;

(2) pulse 80/min;

(3) FHS [foetal heart sounds] 132/min;

(4) bright blood on sanitary pad; and

(5) that there were no contractions.

I made the comment that if the blood loss increases or if the patient commences having contractions to notify me immediately. Some time later and I do not know what the time was I was notified that uterine contractions had recommenced.

I immediately got out of my bed and went to the delivery suite and proceeded to do what I normally do in patients who have Shirodkar sutures.

The patient was noted to be in no distress and the FHS were 130/min. After scrubbing up the patient's legs were placed in stirrups so that she was in the lithotomy position.

She was examined with a Cusco [speculum] position (sic) and the cervix was noted to be 2-3 cms in diameter, and there was some blood in the vagina, which I felt was coming from the cervix. The Shirodkar suture was cut out under vision and I proceeded to do a PV [vaginal examination]. At PV she had a bulging bag of membranes so I artificially ruptured them in an effort to get the patient into good labour. This is my routine management of such cases with a Shirodkar suture.

After rupture of the membranes there was a gush of bright blood. We immediately listened to the FHS [foetal heart sounds] and they were astoundingly at 40/min. We proceeded to lower the legs from the stirrups so that the patient was flat on her back and we relistened to the foetal heart sounds. We could not hear them despite using the sonic aid and the usual foetal stethoscope. After about twenty minutes we finally felt a movement and heard the foetal heart sound which once again was 40 beats/min. At this time we immediately proceeded to caesarean section without delay and delivered a female baby which appeared to be exanguinated and had an Apgar [Apgar score, a measurement of the condition of a newly born infant] rating of 1. The baby was resuscitated by the anaesthetist (Dr Major) until the paediatrician arrived 10 minutes later.

The caesarean section was commenced at 12.35 am and this was despite the fact that theatre staff and anaesthetist had to come to the hospital. Also at the Caesarean section it was noted that Mrs Radovanovic had an intrauterine device which had previously perforated the top of the uterus, and a left ovarian cystic mass.

The intrauterine device was removed and the left ovary was taken out for a dermoid cyst. Post operatively the mother's course was uneventful.

At the time I was obviously distressed and on analysis of the situation I considered that I would manage a similar case in the same way.

The diagnosis of Vasa Praevia was made as soon as the membranes were artificially ruptured. It was not considered before as it is not uncommon for Shirodkar suture to bleed and there was no recognisable foetal distress prior to the ARM. [artificial rupture of membranes].

Mr Radovanovic asked me why I did not proceed immediately from ARM to LSCS [lower Caesarean section]. I told him that as we could not hear foetal heart sounds despite every means available to us I did not feel that I could risk a possibly dangerous operation if I thought the baby was dead.

Mr Radovanovic persisted in saying that the bleeding seen at home came from the baby despite me saying that there was no foetal distress prior to rupturing the membranes and that there was a considerable bright haemorrhage on rupturing the membranes. Also prior to the ARM it was considered that the bleeding was coming from the cervix.

[152]

And I think that you have also said that the bulging bag of membranes would have had within it liquor? - - - Yes.

And that liquor would have come from the uterus? - - - Come from the liquor pool, yes.

In which the foetus was floating? - - - Certainly.

And doesn't the appearance of a bulging bag of membranes in that situation suggest that there was some pressure from within the uterus to push out that bulging bag of membranes? - - - Yes.

And that indicates, does it not, that the foetal head was not either fully engaged in the pelvic area or there was sufficient of a gap between the foetal head and the cervix to enable the liquor to escape inside the bulging bag of membranes? - - - Fluid to pass between the pelvic wall and - well, on one side and the head, to allow for - fluid to get down, could seep down there, certainly.

And if fluid could get down then blood could get down, outside the membranes? - - - If there had been some sort of haemorrhage outside it's possible for blood to get down there too.

Right and that's what happens in a placental bleed, isn't it? - - - Yes.

So that even on all the assumptions you've made, then placental bleed was still possible for Mrs Radovanovic when she was in the labour ward being examined by Dr Cutter? - - - I would have to say yes but I would like to qualify that.

Please do? - - - At that stage of the clinical examination he would have got to the stage of examining because he felt there was a local cause, otherwise he wouldn't be justified in doing it.

Right? - - - And so I am only happy to clarify it for the court that ...

No, no doctor. I am not trying to stop you at any time from offering your opinion. So viewing the cervix, the gentle speculum examination that took place confirmed his diagnosis that the bleeding was coming from the cervix and the engaged head really precluded any significant contribution to the patient's hazard by any degree of placenta praevia. In other words, once he had looked at the cervix he saw the bleeding associated with the stitch and that validated the subsequent clinical steps. He saw the damage to the external surface of the cervix? - - - At that stage he saw that, yes.

And that's a necessary step in your reasoning, is it doctor? - - It is.

[153]

49. The importance of that exchange is to direct attention to how vital a role the bleeding that had brought Mrs Radovanovic into the hospital played in the decision making process. In Dr Patterson's view, in all the circumstances that justified Dr Cutter proceeding on the basis of a bleed attributable to the stitch cutting out. At that stage Dr Cutter was proceeding only on the basis of what he took to be a small blood loss and not the sort of haemorrhage that had been described to Sister Alexander. A further matter of moment is Mrs Radovanovic's assertion in her evidence that after Dr Cutter removed the stitch he told Mrs Radovanovic that he would wait until morning before rupturing the membranes. She felt disappointment at this. She then says that "he put his hand back inside me to examine me". That clearly indicates to me that Dr Cutter did not make a conscious decision to rupture the membranes before he commenced a vaginal examination of Mrs Radovanovic. It may also be taken as an indication that he had not ascertained that the baby's head was engaged before that vaginal examination, for his evidence was that his invariable practice was to not consider rupturing the membranes unless he had ascertained that the head was engaged. In any event, it is clear that he did conduct the digital vaginal examination that he regarded as routine in respect of women in labour and without any consideration given to any possible presence of placenta praevia. His evidence was that the purpose of the examination was to assess the state of the cervix, the state of the pelvis, the level of presentation of the head and the presence or absence of membranes. It was a procedure that he undertook in circumstances where there was no suspicion of the existence of a placenta praevia. It should also be noted, at no stage, has Dr Cutter asserted a recollection that he knew that the head was engaged before he conducted that examination and for reasons that I go on to express, I find that he did not palpate Mrs Radovanovic, which might have disclosed the engagement of the head upon him doing so. He relies upon his usual practice that he would not have ruptured the membranes unless he had satisfied himself that the head was engaged. I am prepared to accept that, but that begs the question of whether, in the circumstances of this case, he may have conducted a digital vaginal examination without ascertaining the fact that the head was engaged.

[168]

58. The onus is on the plaintiff to establish that the hospital was in breach of its duty of care through one of its employees not alerting Dr Cutter of the nature and extent of the bleed at home. On Dr Cutter's evidence the initial consequence of him not being informed of the nature and extent of the circumstance that brought Mrs Radovanovic into the hospital was that he did not proceed to the hospital but rather ordered the midwife to arrange for cross-matching of blood in the morning and request that he be notified immediately should the blood loss increase or contractions commence. Dr Cutter was adamant that had he been aware of the large blood loss he would have gone into the hospital immediately. I have accepted that this is so but it is clear that Dr Cutter, for whatever reason, was not consciously aware of that blood loss. All of the experts called on this aspect were of the view that the large painless bleed raised a presumptive diagnosis of placenta praevia which should be excluded before any further steps were taken in the management of the patient. There was, however, no agreement as to whether Dr Cutter should have come into the hospital at that stage. Unfortunately, the views of the experts were coloured by the weight that they gave to certain external factors about which they had formed a view during the protracted time that this matter had taken to come to trial. Both Professor Beischer and Professor MacGillivray took the view that there was in existence a placenta praevia and that event almost certainly indicated that the baby's head would not have been engaged. Professor Bennett and Dr Patterson, on the other hand, regarded it as a given that the head was engaged and that factor should be regarded in the diagnosis and the management of the patient. Further, all the experts in their pre-hearing reports took Dr Cutter as having knowledge of the heavy bleed at home and proceeded to give their opinions as to his management on that basis. The fact is that it is Dr Cutter's evidence that he did not know of the large bleed and, as I have found, did not ascertain that the baby's head was engaged before he conducted a vaginal examination of Mrs Radovanovic.

[201]

Well you say Dr Cutter was quite confident that there was no placenta praevia directly through the cervical os. That suggests, does it not, that you're saying, whether by way of belief or fact, that Dr Cutter made a digital examination of the internal aspect of the cervical os and found no placenta directly there, isn't that correct? - - - No, it isn't at all.

I see. I'm sorry, then please tell me what you ...? - - - He knew from abdominal examination that the foetal head was engaged and that there was not a major degree of placenta praevia present. On removing the cervical suture he was faced with membranes, not placenta. He could be quite confident, therefore, that he wasn't dealing with a major degree of placenta praevia.

So you're not suggesting in that sentence that there was a digital examination by Dr Cutter of the internal ...? - - - No.

... cervical os? - - - No. And an ordinary practising obstetrician, I do not believe, would do such an examination in the labour ward as such.

Thank you. Now I don't think there's any reference in any of your reports, but please correct me if I'm wrong Professor, to a statement whether by belief or otherwise that Dr Cutter had made an examination, an internal examination of Mrs Radovanovic to determine the location of the head and had found it to be engaged whether fully or otherwise, on this evening, that's correct isn't it? - - - You don't determine engagement by doing an internal examination.

Well you determine engagement by an examination of the fornices, don't you? - - - Of the abdomen.

Of the abdomen, all right? - - - It's an external abdominal examination.

Is there any reference in any of your reports to such an examination ...? - - - Not that ...

...either by way of belief or otherwise? - - - Not that I recall.

And indeed there's no argument or discussion in any of your reports based upon the proposition that the foetus' head was engaged, is there? - - - Well we know from the ante-natal record that the head was engaged.

Well I'm just asking you about your reports Professor. There's nothing in any of them, is there, that contains any discussion whether by way of belief or assumptive material that Dr Cutter had made an examination of Mrs Radovanovic to determine the location of the head? - - - No, it was an assumption I made on the balance of probability. An ordinary obstetrician would not assault and insult a patient by doing a vaginal examination without doing an abdominal examination first.

[232]

This is an additional report on Lainie Radovanovic based upon further issues that have been brought up about how and when her irreversible brain damage occurred. There can be no doubt that there was a significant blood loss and, of course, the exact amount will never be known but it is fairly clear that she needed a significant blood transfusion post delivery and I presume the observations were that she was severely anaemic and hypovolemic. There has been some question whether there was ongoing blood loss between the artificial rupture of membranes and until the delivery. The contention that there could have been ongoing blood loss seems a reasonable possibility but in the situation of a vasa-praevia I would presume that any blood loss would be clearly visible since the ruptured vessels are near the cervical opening. I am not aware that there is any evidence that further blood was witnessed between the time of the initial gush of blood and the time of delivery. The sequence of events after the artificial rupture of membranes would indicate to me that there was severe asphyxia which was caused, most likely, by the loss of blood and, hence, the loss of blood pressure since I do not have any other explanation.

As I stated in court I believe that the sudden and severe loss of blood pressure, as opposed to usual conditions where there is a slower loss of blood or else intermittent or gradual asphyxia, resulted in the usual coping mechanisms of the term infant to be overwhelmed. This resulted in the precipitous drop of pulse rate from normal down to forty beats per minute within two minutes and, subsequently, the heart rate was undetectable. The loss of a detectable heart rate has a number of possible explanations. It could be that the bradycardia was severe and the heart beat too weak to be detected but also in severe asphyxia or hypotension the sudden fall in the ventricular pressure of the heart can result in an asystole but the heart beat did recover as the shunting mechanisms and other coping mechanisms of the foetus come into action. I think that the latter has to be considered as a possibility and, again, points to this severe and overwhelming situation on the foetus.

I believe that because of the severe and precipitous events that not only the coping mechanisms of the circulation failed but also there was a lack of ability of the energy systems of the brain to compensate for the low oxygen and low circulation. This results in failure of energy mechanisms of the cell which, in turn, leads to brain swelling and destruction of the function of the brain, which happened in Lani[sic]. As you recall, there was evidence of generalised cerebral oedema after birth. The outline of what probably happened, in Lainie's case, is found in the reference I provided from the Clinics of Perinatology from June 1993, page 307, under the heading of "Response to Severe Asphyxia". I believe that Lani,[sic] obviously, was able to adjust with some adaptive mechanisms after the sudden blood loss but by that time there was irreversible brain damage and the reperfusion of the brain, not only the brainstem which obviously kept her alive, but the cortex, as well, resulted in further damage because of reperfusion injury.

[296]

143. Lainie is now 24 years of age. She was profoundly disabled from birth. She required treatment in the intensive care unit for six weeks from her birth. Her treatment included anti-convulsant therapy to control her fits. While I do not have the various reports and correspondence of Dr Crawford, the paediatrician who attended at her birth and who saw her at least for her first 13 years, I do have the description and explanations by Dr Harbord of her injuries. It is agreed that as a consequence of the asphyxia which Lainie sustained at birth, that caused cerebral palsy. Cerebral palsy is a chronic disability of the central nervous system characterised by aberrant control of movement or posture. Dr Harbord described Lainie's condition as that of cerebral palsy with spastic quadriparesis, an intellectual disability, a small head size, and a history of epilepsy. The consequence is that Lainie had a significant developmental delay and has developed the spastic quadriparesis accompanied by her intellectual disability and epilepsy. Over time, she has had aggressive behaviour outbursts. There have been no concerns about her hearing but she had astigmatism at birth and subsequently developed myopia in her left eye. This eyesight deficiency was not related to her brain damage, but she did develop a turn in her left eye to which some contributing cause could be a neuro-muscular paresis. Overall, it appears that her general health has been satisfactory with no episodes of aspiration pneumonia. Between 1984 and 1994 she has had a number of surgical operations to ease the spasticity in her legs and has been hospitalised on many occasions. In 1985 she underwent bilateral heel chord lengthening with a view to assisting her to be able to weight-bear and to walk. During this time she underwent considerable physiotherapy treatment. When she was 11 years old, she underwent an operation on her left and right thighs involving a period of hospitalisation with plaster cast and immobilisation for some six weeks. The procedure also involved the metal implants being removed some six months later. Generally she has had operations on her hips, legs and feet related to her spasticity.

[300]

General

She presented as a pleasant happy person somewhat overweight for her age.

She could manouvre her electric wheelchair through the house without difficulty.

She spent a good deal of the time of this consultation in another room listening to music. She sang the songs and appeared to know the words. She demonstrated a good sense of humour.

She was aware of her surroundings and interacted with her mother and myself in an appropriate fashion. She did not demonstrate an ability to participate in meaningful conversation.

Mobility

She cannot stand.

She has a spastic quadriparesis. This is a partial paralysis of her arms and legs. She has difficulty bending her knees.

Her arm movements are associated with tremor. She has virtually no useful movement of her legs. She cannot transfer herself from her chair. She has been provided with a special hoist for standing and transfers which I was shown in use.

She has good control of her electric wheelchair and uses a hand control. She is unable to propel herself in an ordinary chair.

Transfers

She requires one person and a special hoist for transfers from her chair to the toilet.

Two people are required to lift her and toilet her when she is away from home and the special hoist is not available.

Activities of Daily Living

She is unable to dress herself. Two people are required.

She cannot cut up her food or prepare meals.

She can feed herself slowly with a special spoon, fork and plate. She requires a bib.

She can hold a cup but her drinking has to be supervised as she `gulps' quickly and tends to choke.

She is unable to groom herself or clean her teeth properly.

Bladder/Bowel Management

She is continent. However, she requires total assistance with toileting (either 2 people or one person and a special hoist as described above).

Behaviour

She was happy and showed no signs of aggression whilst I was with her. Her behaviour was a little inappropriate in that she spent a good deal of time in another room singing whilst I was at her home.

She requested that her mother take her to the toilet during this consultation. This took approximately half an hour.

Medications

Her daily medications include:-

-Anti-epileptic medication to prevent seizures. This commenced shortly after birth. She has not had a significant seizure recently and her medications appear to be effective.

-Mediation for behaviour control. These appear to have become effective.

-Medication for control of her menstrual cycle.

Speech

She is often difficult to understand (dysarthria) and does not initiate conversation.

She is unable to read and write.

Activities

She has no hobbies.

She enjoys music.

She enjoys company of others, particularly of her own age. She enjoys going out to lunch with her carers, and enjoys outings.

She plays cards ("Snap") with her mother.

She has a good sense of fun.

OUTLINE OF DAILY ACTIVITIES

The routine of her average day during the week is as follows:-

7am-8am Carer attends. She is bathed, toileted and dressed. A special hoist is used.

8.am She feeds herself breakfast slowly with special equipment. Mother prepares breakfast.

9am-3pm She attends a special school (this is her last year). She travels in her electric wheelchair in a special bus.

There are no plans for her activity during this time from next year onwards.

3pm She leaves school on special transport for her wheelchair.

On Monday she attends a Drama Group for People with Disabilities (PWD). She is home by 6.00pm.

On Tuesday she attends a music program for PWD.

On Wednesday, Thursday and Friday she is home by 3.30pm. A Carer is available from 3.15pm to 5.15pm.

6.pm She is toileted by her mother and dinner is prepared for her.

6.45pm She is in bed. Her feet and legs are massaged and moved passively to prevent contractures, by her mother or a carer who attends on Tuesday and Thursday evenings.

10.30pm She is taken to the toilet by her father (hoist used).

Note. (1) Every second week-end she goes to Respite Care from Friday evening until Monday morning (ACT Society for Physically Handicapped).

She prefers being at home.

(2) On the other alternate week-end a carer arrives at 11.30am on Saturday and she travels by wheelchair accessible cab with the carer to Woden Shopping Centre. She is met by a second carer and has lunch with both carers.

Two carers are required for her to toilet. The additional carer leaves at 2.00pm and she is escorted home at 2.30pm. The carer remains until 5.00pm.

(3) When at home on the week-end a carer also comes for about one hour at about 9am for bathing, toileting and dressing.

(4) Her mother and father both have full time jobs.

(5) Prior to the motor vehicle accident in June 1998, she began to need two carers for transfers and toileting purposes when away from home because of her increasing weight. This need continues.

Since the accident the carers prefer to use a special pan for toileting rather than transfer her to an ordinary toilet which has become extremely difficult.

(6) She finishes attending her special school this year and no plans have been developed for her daily activities next year.

[311]

157. In his written report, Dr Bowers extrapolated from the tables set out in two of the articles and a graph in the other in order to arrive at an estimated life expectancy for Lainie of an additional 37 years to live. Those articles were the Eyman article and the article by Strauss and Shavelle to which I have earlier referred, together with a further article, Long-Term Survival of Children and Adolescents After Traumatic Brain Injury, published in the Journal, Archives of Physical Medicine and Rehabilitation, Vol 79, September 1998 which was also authored by Strauss and Shavelle, together with Terence W Anderson (the Strauss, Shavelle and Anderson article). These last two articles were specifically directed at survival based on classifications of functional levels as to feeding and mobility. They related to subjects who received disability services in California between 1980 and 1995 in the case of the Strauss and Shavelle article and between 1987 and 1995 in the case of the Strauss, Shavelle, Anderson article. The Eyman article was more broadly based but studied profoundly disabled people with mental retardation in an 11 year period between 1980 and 1991. In his evidence before me, Dr Bowers conceded, in effect, that it was not desirable to do a strict extrapolation from these various tables or, more particularly, the more detailed analysis that the authors of the Strauss and Shavelle article say would be achieved by a Cox proportional hazard survival model. This analysis, the authors say, would give more appropriate estimates of life expectancy and survival probabilities. Such an analysis could be expected to determine the risk and hence the excess risk relative to the general population. But nevertheless, Dr Bowers, rather than doing this, adjusted his estimates for life expectancy further on the basis of his clinical experience and not just in reliance on the paper. If that be an appropriate approach, I find it curious and unconvincing that in his original written report, Dr Bowers should derive estimates of life expectancy from each of the articles to which he refers and then adopts the average of them.

[324]

168. Dr Bowers, for his part, primarily relied upon the Strauss and Shavelle article. There was, however, some inconsistency in the way that he dealt with the article. The article's express purpose was to determine the predictors of mortality and to provide some basis for relating them to life expectancies of adults with cerebral palsy. The article proceeded by way of an assessment of life expectancies of people of a given age, gender and cohort by estimating the relative risk. Despite the article detailing characteristics of persons with cerebral palsy and considering other hazard ratios of such persons, the article ultimately categorised persons with cerebral palsy in broad situations of "cannot lift head, lifts head, rolls/sits" and to further divide such categories into those in the specified categories who require to be tube fed, fed by others without feeding tube and self feeding. Ultimately, the comparison was made between the 24,768 individuals aged 15 years and older who received services in California between January 1980 and December 1995 to be analysed against the general population. The effect was the production of a detailed table and it was this table that Dr Bowers used to extrapolate an additional life expectancy for Lainie "in the order of 40 years". In his report, Dr Bowers then extrapolates further figures from the Eyman paper and the paper by Strauss, Shavelle and Anderson to average out an estimated life expectancy and arrive at the conclusion that the plaintiff's life expectancy is an additional 37 years to age 57. I do not find this approach at all convincing. It seems to me that the point of the table in the primary article is to support the generalisation to which the article is directed that life expectancies for the highest functioning group with full motor and feeding abilities were, on average, only five years less than those of the general population, but that there was a much poorer prognosis for people with minimal functioning which had not previously been reported. If anything were to be made of the table then it should be made in the way that the authors of the paper suggest. They say (at p 375) -

[356]

186. The plaintiff claims the past pharmaceutical expenses. The plaintiff has been on a variety of medication for epilepsy, her hip and knee pain, her tendency to become constipated and for suppression of menstruation. The defendants accept these expenses but dispute the expenditure. The matter is complicated by the fact that, as a result of the motor vehicle accident in which the plaintiff was involved on 15 June 1998, various drugs and treatments were provided to her as a result of changes in her condition and behaviour following that accident. She received a lump sum payment as a result of that accident and there must be some risk of double-counting in relation to the expenditure of drugs in the period of some two years, at least, after this accident. The matter is further complicated by the fact that the plaintiff relies upon medication costs of the drugs as at 1996 when Dr Buckley made some assessments following his examination of the plaintiff. In addition some undated costings from the Narrabundah Pharmacy are relied upon which I am not able to relate to the specific items claimed. Ultimately, the plaintiff's claim is for past weekly expenditure on pharmaceuticals at about $6.30 per week. The claim is, therefore, for $6,798.00. As the defendants point out, there is little to support the assessment of such a constant sum over the period of time. In some cases the referenced material provided in support of the claims does not support it, nor is there a period over which the rates might be applicable. In what purports to be the result of an analysis of the plaintiff's claim, the defendants suggest that the claim of $6.30 per week should be reduced to $5.30 per week. Then after making the point that this is based largely on expenditure costs as at 1996, they suggest an amount of $1,000.00 be allowed. I consider that the defendants' criticisms have some force and, particularly having regard to the lack of detail regarding the expenditure, I would allow $3,000.00.

[371]

201. The plaintiff has lived with her parents at two houses, one at Hawker and one at Red Hill, suburbs of Canberra in the ACT. Both houses were purpose built with modifications to cater for the plaintiff's needs. The plaintiff moved into the Hawker house in January 1985 and into the Red Hill house in March 1996. As evidence of the modifications to each of these premises that were made, a report from the architect, Mr Maiuto, of 20 September 1997 was tendered. The report purported to detail the specific design requirements and opinion of the probable cost incurred by the plaintiff's parents of the modification of the homes at Hawker and Red Hill to accommodate the plaintiff's needs. Mr Maiuto's expertise and ability to express the opinions that he expressed was not challenged by the defendants. No material was placed before me as to whether the costs were actually incurred, although I must assume that the defendants do not challenge the requirement to make the modifications to accommodate the plaintiff or the costings of them. There is no challenge either as to whether the modifications were reasonably necessary in the circumstances. No explanation was proffered to me as to why the plaintiff chose this method of proof of her loss rather than by proof of the actual costs of the modifications. As the plaintiff's father is a builder by occupation it is surprising that more detail of the expenditure was not provided but it appears that the defendants did not pursue this aspect. However, as I put in argument to Mr Meldrum QC, for the second defendant, the unchallenged material before me showed some evidence of cost. He made two points. The first was that the plaintiff had not established that there was any expenditure. The second was that the plaintiff had not shown that it was productive of any loss. As to the latter aspect, he pointed to there being no evidence of the price obtained on the sale of the Hawker house or no evidence of the value added to or detracted from the Red Hill house.

[391]

220. The defendants accept that the plaintiff will need about three weeks hospitalisation every ten years for the rest of her life. That estimate is reliant upon a report by Professor Oakeshott of 26 February 2000. The projected costing of this is extraordinarily difficult. The plaintiff has relied upon a November 1995 rate for hospital beds of costing $450.00 a day and then asserts that the John James Memorial Hospital currently charges $535.00 per day for a hospital bed. From that figure, they derive a sum of $11,235.00 every ten years. Originally, eight episodes of hospitalisation were claimed but that was reduced by one, presumably because on their calculations the plaintiff would have been 95 years old at the time of the eighth episode. Having regard to my assessment of the plaintiff's life expectancy, the number of episodes needs to be reduced to six. The defendants would seek to have the first episode of hospitalisation disallowed as not having occurred. The plaintiff counters by saying that the last episode of hospitalisation was on 15 March 1994 and on that basis, the first episode can still be claimed. The defendants disagreed that the rate should be allowed at the asserted rate of $535.00 per day. I agree that there is much force in that. There is no evidence at all as to what the current (or then current) rate was per day. The figures quoted relied upon a rate costed in 1995. The defendants also sought a reduction of 30% upon the basis that older people go to hospital more often and for longer than younger people and that this is more likely to be towards the end than the beginning (I take this to mean of a person's life). There is said, therefore, to be the requirement for a reduction for these vicissitudes and that that ought to be 30%. The plaintiff did not seek to respond to this argument, but I find it difficult to accept as an appropriate deduction in respect of possible changes that might or might not occur. After all the episode assessment has, I presume, an averaging element to it. The whole matter is plagued with uncertainty. In the end, I am prepared to allow the hospital charges at the rate evidenced by the plaintiff at $450.00 per day, to consider the first episode as not requiring deferral (as likely to occur in the decade between 1995 and 2005), and to apply the deferred tables at an interest rate of 3% for the second to fifth episodes of hospitalisation. That results -

[402]

230. This item provoked a completely negative response from the defendants who would disallow all of the items claimed. What the plaintiff sought to claim were devices in the nature of an alphabet board or a Cannon communicator, which she had previously been using at school or the use of an electronic device known as a Macaw 3. The only costing for a device of this nature is for the Macaw 3. That relates to a costing provided by an occupational therapist in 1997 which costs the Macaw 3 device at $3,115.00 with a replacement requirement every five years. The occupational therapist would also allow maintenance on this equipment at the rate of $100.00 per year. There is a report of Lainie's speech pathologists in 1991 which contains an estimate for a future simple electronic device but that is not claimed by the plaintiff. There is a report from the speech pathologist in 1997 which recommends, in a general way, speech pathology consultation and intervention. I was then referred to a report of Dr Rosemary Crossley, an expert in facilitated communications. Her report of 29 September 2000 recommends a portable communication device either a Lightwriter, DynaMyte or Vanguard ranging in cost between $6,800.00 and $15,000.00 and she recommends rental for a short period for trial. The defendants say that this overlaps with the recommendation of the speech pathologist in respect of the portable communication devices. I think that the defendants may be right in this aspect, but that does not mean that there is a distinction still to be made between the plaintiff's needs in respect of speech pathology, the need for assistance in whatever augmented communication devices are provided and the need for further education to foster literacy skills and communication aid use. On the material before me, ranging as it does from reports in 1991 to 2001, it is very difficult to sort out the equipment that might be required, the training and assistance that should be given to Lainie in respect of it, as well as providing a tutoring function to foster Lainie's literacy and communication aid use. In framing the plaintiff's claim in relation to these matters, pieces have been picked out of each of the respective reports and, in some cases, the costings in one report translated into the recommendations in another. I am satisfied that there is not so much an overlap in relation to the plaintiff's claims, but rather requirements at different points in time. I generally accept what the speech pathologists saw as Lainie's speech pathology and communication needs as being applicable up to the time that she was seen by Dr Crossley, and I accept that Dr Crossley's material projects Lainie's needs, in that regard, from that time on and expands, to some extent, the nature of the support Lainie is entitled to have in respect of these aspects. Accordingly, I allow for a simple electronic voice device being a Macaw 3 which, with its mounting, is at a cost of $4,128.00. I accept that it needs to be replaced every five years and would expect it to be replaced by some system that Dr Crossley recommends. I will come to that item later. There is then the difficult task of attempting to assess the support and training that Lainie should have from a professional person experienced in augmentative communication to set up and monitor a program designed to reduce Lainie's perseverative speech, program the communication aid and set up her computer programming. It was Dr Crossley's recommendation that this be four hours of therapy a week directly after the equipment is purchased with the allocation to be reviewed in six months with a reduction to two hours per week for at least the next two years. Although Dr Crossley suggested the appropriate rate for this as between $80.00 and $100.00 per hour, Mrs Crouch, the occupational therapist, costs speech pathology out at $96.00 per hour. That is a rate that I would be prepared to allow. Dr Crossley also recommended that a tutor be employed for two two hour sessions per week, a total of four hours a week, to enable Lainie to catch up on some of the work she has missed and to foster her literary skills and communications aid use. She suggested that arrangement should be reviewed every six months but envisaged that Lainie would benefit from this input for at least the next two years. She went on to say that the tutor's role may effectively be combined with that of carer, if a person with the right skills can be found, and she made the point that Lainie does not need a tutor and a carer at the same time. Nevertheless, the plaintiff seeks this cost. The plaintiff's response, to the defendants putting that this should not be a separately charged tutorial service but part of the supervised attendant caring, is to say that if the requirement for tutoring could be satisfied by an attendant carer, then one would expect the plaintiff to have already received such tutoring and to not have any need for additional tutoring to improve her education or to foster her literacy. That does not seem to me to answer the point that Lainie does not need both, rather to stress the need for an appropriate qualified carer and perhaps some need for additional financial compensation for such a carer. The plaintiff goes on to claim that speech pathology intervention is required for approximately 12 hours twice a year. That was a recommendation that was made by the speech pathologists in 1991 and it is difficult to see how it fits into the regime proposed by Dr Crossley. On the other hand, it is apparent that if the portable communication devices recommended by Dr Crossley are adopted, they will require the period of support and training that Dr Crossley recommends and presumably further support and training when there is a review and replacement or upgrade after three years. It is Dr Crossley's opinion that there is a need for that review and upgrade. In light of the uncertainties about the additional tutoring, but recognising the strength of this component in Lainie's claim, that may best be met by accepting the claim for speech pathology intervention of approximately 12 hours twice a year recommended back in 1991 and accepting the hourly rate of $96.00 at an annual cost of $2,304.00, a weekly cost of $44.30 by the multiplier 1,351, as a cost of $59,849.00. I would allow this sum.

[406]

234. In his report of 26 February 2000, Professor Oakeshott referred to Lainie's awareness of her situation and trouble in establishing and maintaining friendships with her own peer group, that sexuality issues need addressing and her psychological responses to everyday events needed monitoring and professional report. He estimated that she would benefit from counselling sessions with a clinical psychologist for at least one hour per month for the rest of her life. It is clear from Professor Oakeshott's report that he is not recommending this counselling as a consequence of the motor vehicle accident in which Lainie was involved in 1998 as he takes Lainie as having settled down to her pre-accident state prior to his consultation with her. Mr Sutton, who prepared a report on the psychological aspects of Lainie's condition after the accident and after Professor Oakeshott had made his report, specifically recommended psychological counselling for Lainie's current behaviour for 20 intensive sessions over two months with support and review sessions fortnightly for four months and then monthly over two years. He also added that crisis management sessions will be required, probably six annually for the duration of Lainie's life. As he took the view that Lainie was not amenable to counselling in a psychotherapeutic sense and required specialist behavioural programs, the defendants took the view that he was at odds with Professor Oakeshott. I do not think that this is so. It seems to me that Mr Sutton is stressing the requirement for Lainie's psychologist to be thoroughly trained and experienced in modern applications of behaviour theory to therapy. The latter part of his report, which envisaged on-going counselling for stimulation and supervision of routines, developmental issues and separation issues, all point to the counselling recommended by Professor Oakeshott as being required on an on-going basis irrespective of the accident. My biggest difficulty is in determining whether Mr Sutton's reference to the requirement for crisis management sessions being required which he expresses as being in addition to the sessions that he recommends as a consequence of the accident. In the end, I consider that the crisis management sessions would have been taken into account in the settlement of Lainie's accident claim and I should not allow for them. As for the sessions that I do allow at $155.00 per session that amounts to $1,860.00 per annum or $35.77 per week, at the multiplier of 1,351 that amounts to $48,325.00.

[408]

236. Professor Oakeshott reports that Lainie requires a general anaesthetic for any dental examination and work. At a minimum, he estimates her requirements to be one hour per year for the rest of her life. Even so, Dr Gordon, her treating dentist, indicates that in the past some home visits in May 1993, March 1994 and February 1995, took place apparently without the requirement for general anaesthesia, but that general anaesthetic was required in April 1995. In December 1987 Lainie suffered a complex fracture to her upper right central incisor tooth as a result of a fall out of her wheel chair. There was a need to treat this under general anaesthetic in August 1996 and treatment may be required in the future in respect of this tooth which could include root canal therapy, porcelain crown or should the tooth become unrestoreable, implant replacement therapy. The defendants' response to these matters is to allow costs based on Dr Gordon's report of the treatments that he has carried out on what the defendants say is 11 occasions or once every 66 weeks. That does not accord with Professor Oakeshott's estimate and does not assist me in determining what I should allow for the future. The plaintiff's submission goes on to suggest that based upon the plaintiff's previous dental treatment, the plaintiff will require one hour of dental treatment in a hospital every second year for the rest of her life. That includes the hospitalisations related to the fracture of her incisor tooth. On the other hand, I note Dr Gordon's comment that Lainie will require a general anaesthetic for any future dental treatment. I also note his comment that she has a high standard of oral hygiene, very few dental restorations that will require future maintenance and very supportive parents who value preventative dental care. I would allow the home visits at a cost of $111.95 or $1.70 per week by the multiplier of 1,351 in the sum of $2,297.00. I accept that Lainie may have the need for hospital admissions in the future but have some difficulty in accepting that they will occur every second year. On the other hand, I consider a frequency greater than once every seven years as proposed by the defendants as also not being justified. Merely because Dr Gordon makes the comment that his estimate of future dental costs does not account for any future unforeseen circumstances does not indicate that the plaintiff is at risk of damaging her teeth from wheelchair falls in the future as the plaintiff contends. The comment is really fairly directed at the difficulty of accurately estimating future dental costs. Doing the best that I can with the figures that I have been given, I would allow for dental treatment under anaesthetic once every three years. The fee for dental costs at a 30% loading is $145.54. Theatre and facility fees are $515.00. I allow $220.18 per annum or $4.23 per week by the multiplier 1,351 which is $5,715.00. A claim is also made for future treatment of her fractured incisor tooth. Depending upon whether root canal therapy, porcelain crown or implant replacement might be required, there is a cost ranging from $1,500.00 to $3,696.00. The defendants say that whatever sum is fixed upon, there should be a high discount for contingencies. I am inclined to agree. I would allow a sum of $1,875.00 which includes a discount for contingencies of about 25%.

[409]

237. The defendants disputed the plaintiff's claim and method of calculation for the replacement of wheelchairs. The plaintiff initially claimed a requirement to have two electric wheelchairs, one to be in reserve when the other chair has broken down or is receiving maintenance. The plaintiff claimed an inflationary cost in respect of the price of future wheelchairs. Working on a life span of four to five years, the plaintiff maintained that one electric wheelchair every four years commencing in four years time was required and a second wheelchair every eight years. This reflected the view that a second wheelchair was likely to have twice the longevity as the first wheelchair because it was not used as often. The defendants disputed each of these aspects. The defendants make the point, and I accept it, that there is no reason why, if the chairs are replaced every five years, that the chair that is replaced is not capable of serving as the reserve chair. The defendants also disputed that an allowance be made for the increased cost of wheelchairs as the result of inflation, relying on Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402. The plaintiff has responded by accepting that there is not an entitlement to an increased cost of wheelchairs on this basis. As I understand it, the plaintiff also now accepts the defendants' calculations as to the present cost of a wheelchair with a modified footplate at $8,125.00. The plaintiff also now accepts the defendants' suggestion of the provision of a power tilt seat at $1,650.00 and a modified footplate at $500.00. In addition, the plaintiff seeks a modified backrest for an additional cost of $500.00. That is a sum of $10,775.00. The defendants' response to the initial claim allowed for the costing that the plaintiff now claims other than for the modified backrest, and the plaintiff now accepts those costings and includes the modified backrest. The need for the modified backrest was accepted in the defendants' submissions before me. On that basis, and accepting the defendants' argument that the replaced wheelchair will serve as the reserve chair, there does not appear to me to be the need to make the adjustment as to the cost of the wheelchair that the plaintiff makes to increase the replacement cost by 50% on the basis of requiring a reserve chair every ten years. The cost of replacing wheelchairs, taking into account a compound interest rate of 3% every five years commencing in 5 years time is:

[434]

255. The Disability Program that Ms Grayson runs includes accommodation support services with multidisciplinary support teams providing allied health services including psychology, physiotherapy, occupational therapy and speech therapy and community access services as activity programs together with centre based respite. At the present time accommodation support services relate to 70 group houses with a mix of residents that have been assessed according to their intellectual capacity, physical needs and personality to ensure compatibility and companionship for the residents. Those services are not provided to Lainie at the present time because she resides with her parents although she has been assessed for participation in a community access service (daily activities) program. Although assessed as suitable for some activities, that aspect had not been taken any further at the time of Ms Grayson's statement. Lainie does not receive any accommodation support service which would require a request from her. If that were to happen, Ms Grayson would put forward her circumstances before a Placement Committee which would consider her case on its merits and make a recommendation. If the Placement Committee made such a recommendation, she would be accepted into the program as soon as suitable accommodation became available. The program currently provides support for disabled people who are in receipt of private funds and the timing of their placement depends upon fitting the person's needs with available and suitable accommodation. This is dependent upon there being a vacancy and the compatibility of their needs with other residents. In her statement Ms Grayson gave three examples of the costings that would apply should that eventuate. The first related to four clients with a sleep over with an annual cost of $97,526.00, six clients with active night duty at an annual cost each of $77,805.67 and four clients with active night duty at an annual cost of $108,156.00. The costings were as at November 2000. I have nothing before me to say which of those alternatives (or indeed any other permutation) might be suitable for Lainie. Nor do I have any idea of what might be the position 12 or 15 years hence. The best I could do with that aspect is to speculate that there might not be any great change. If so, I might be satisfied that the criteria, policy, general intent would be available to accommodate someone in Lainie's position. However, I was not provided with any material directed to this aspect. Rather, on behalf of the defendants, it was put that it was for the plaintiff to mitigate her loss and the plaintiff had not presented herself for assessment. Accordingly, I should regard the services as being available to her. I am not prepared to accept this approach. In the absence of some greater assurance of the criteria and policy of the Placement Committee which would give me confidence in a place for Lainie being available when she required it, I do not consider that I am able to regard the service as necessarily available to her. I note, however, the availability of the service and the possibility that Lainie might take up such a service in the event of losing her parents support as a possible contingency.

[442]

263. The defendants accept that the plaintiff requires a wheelchair accessible motor vehicle and it is reasonable to allow the costs of it, additional to a motor vehicle which the plaintiff would have required in her adult years. The defendants argue that I should allow for only one such vehicle. They submit that the vehicle should last at least ten years by which time the plaintiff's mother will be 65, and the plaintiff may elect to live in community housing where the defendants say a vehicle will be available for her use. The difficulty with this submission is that I have no evidence as to whether a vehicle would in fact be available for Lainies use, other than the vehicle used for transportation of the group involved in group activities. In addition I have previously explained why I have not made my assessment on the basis of community housing being an appropriate option in the circumstances. The defendants, it seems, accept the costing of a comparative vehicle suggested by Mr Wood of the NRMA who provided the difference between the standing and the running costs of the vehicles as $163.91. The point that the defendants do dispute is the estimate of the annual distance that such a vehicle would travel. The evidence in relation to this is the report prepared by Mr Wood of the NRMA. He provides calculations of distances covered at 10,000, 15,000 and 20,000 kilometres per year and relates that to the vehicle ownership and maintenance periods for the purposes of standing and running costs. The distance covered in each year is significant because it alters the changeover period. The view being that if a car does 10,000 km per year, it should be changed over every seven years, if it does 15,000 km every year, it should be changed every six years and if it does 20,000 km every year, it should be changed every five years. I am obliged to consider this evidence in a virtual vacuum. There is just no evidence of the plaintiff's needs in respect of the use of a motor vehicle. Nor was any argument addressed as to why the plaintiff would require to use a vehicle to cover 15,000 kilometres which is the figure selected by the plaintiff. The plaintiff in the past has been a regular user of taxis. Annual costs in the past were estimated at between $1,800.00 and $2,000.00 but that does not assist me in this exercise.

[460]

278. A big issue in this debate is whether a carer should always be of the standard of a registered nurse or residential care worker. It is Professor Oakeshott's view that Lainie will require a trained attendant carer to be present for 24 hours each day for the rest of her life. He advises against frequently changing rosters and different people as such an arrangement he says could easily upset her and would likely cause aberrant behaviour. He recommends either a house couple or a roster of carers working shifts, one of such persons needing to be trained at an equivalent level to an assistant in nursing or a residential care worker. He points out that her mother provides part of this need at present. Dr Buckley, in his report and in his evidence before me considered that care should be provided in Lainie's own home by a house couple on a 24 hour a day basis with the training of one member of the couple to be at least at the standard of a registered nurse. He considered that the requirement for a professional standard of that nature was because Lainie will always be unable to make appropriate decisions for herself and will be morally vulnerable to the decisions of her carers. He was cross-examined at some length with respect to this proposition but did not resile from it. He did not, however, suggest that Lainie's parents were unable to provide this but rather directed his attention to the time when Lainie's parents were no longer able to do so. He also made the point that account should be taken for the fact that Lainie's parents may not always be available to do this for reasons of intervening illness and even marital disharmony. He also made the point as to the institutional care suggested by the defendants that the current governmental policy did not favour institutional care. This latter point did not seem to be directed at the community living arrangements suggested by the defendants as being appropriate for Lainie when her parents were no longer able to provide their support. It is a difficult question to determine what resources should be provided to Lainie to provide for her own care having regard to what might be projected as to it. In Dr Buckley's view, whilst Lainie's parents are involved, supervision of any house couple would ordinarily be by them but there would be a requirement for assistance for at least one hour per month of supervision by a local community team or developmental disability service. Such a team would provide a case manager who would assist in the decision-making process regarding vocational activities and other professional requirements as they arose. Professor Oakeshott was of the view that a case manager should be provided being a person skilled in the care and needs assessment of people with brain injury and to be of a registered nurse standard or a training equivalent. Such a person, he considered, would have responsibilities with the selection and training of carers, ensuring that they are rostered appropriately and that backup can be provided. He estimated that this person would be required for at least four hours per month for the rest of her life. I am inclined to accept the regime that Professor Oakeshott proposes concerning the provision of such a case manager irrespective of the parent's role. I consider that contrary to Dr Buckley's views, the lesser standard required by Professor Oakeshott of the carer can be met not necessarily by the standard that Dr Buckley requires of that of professional nurse, but rather that of an assistant in nursing or residential care worker.

[471]

289. The only material that was placed before me was material obtained from the Australian Bureau of Statistics (ABS) of a full-time adult ordinary time earnings and total earnings for females in three monthly periods from February 1998 to May 2000. The ABS qualification to those average weekly earnings is that they represent average gross (before tax) earnings of employees and do not relate to average award rates nor to the earnings of the "average person". Notwithstanding that, the defendants ultimately assert that the plaintiff's adult earning capacity is approximately $400.00 per week net of tax. I am uncertain as to how the defendants arrive at this figure. The suggestions seems to be that, because the plaintiff, on the scenario put forward of leaving school at year 12, the defendants are entitled to extrapolate in respect of her future loss of earning capacity at the rate that the defendants suggest. I think that the defendants' argument boiled down to a concern about allowing, as past loss of earning capacity, the amount of average weekly earnings for the 3.5 years between when it was said the plaintiff would have left school and 13 August 2001 agreed as the date from which future loss would be calculated. Put that way, I also think that there is force in that argument. The average weekly earnings used relate to adult employment and those employed in it. Any average takes into account those persons who have spent their years before becoming an adult (and after) in achieving tertiary qualifications often without obtaining very much by way of remunerative employment. Ultimately, of course, such persons may earn more than the average. Equally, persons who immediately enter the work force will earn less than what is regarded as adult average weekly earnings at least until the time they qualify as adults. What the plaintiff suggests here is a very broad brush approach and in light of no particular profile established as to why the plaintiff should earn more or less than average adult weekly earnings, I also think that there is force in their submission.

[473]

I would, however, like to add some short observations on the question of the appropriate tables to adopt in assessing economic loss. At the outset it must be said that a court faced with the task of assessing economic loss for a plaintiff who is injured as a young child must be accorded a very wide discretion. Clearly enough, precision is impossible. The exercise is one which in many ways involves guesswork.

Nonetheless a practice has developed which has been followed for many years in this State, pursuant to which the plaintiff's loss is calculated by adopting an average wage and making appropriate adjustments to fit any factual vicissitudes. That does not, of course, mean that a court should not prefer to adopt a median wage as a basis for assessing the economic loss in a particular case. There are, however consequences which will, or may, flow from adopting a median figure. That is because, as Badgery-Parker J explained, that figure is the amount which divides the distribution of employees into two equal groups, one having earnings below and the other earning above that figure, whereas the average wage is influenced to a degree by the earnings of a small group of high income earners. In these circumstances it would seem to me that unless there is no reasonable possibility exposed on the evidence that the person under consideration may have become a high income earner it is appropriate to adopt a figure which takes account of the higher earnings, viz, an average figure. It may be that in a given case the facts strongly support the conclusion that there was no realistic possibility that the injured plaintiff would become a high earner. If so, a proper exercise of judgment may support the adoption of the median figure.

It should not, however, be overlooked that in the case of the type under discussion the court is necessarily dealing with possibilities and is doing so with very little information on which to assess those possibilities. It should also be borne in mind that, where propitious possibilities are disregarded in fixing the primary figure for the loss, care needs to be taken in dealing with the vicissitudes to ensure that there is not something in the nature of a double deduction. In my view, where little is known beyond that the child is an average child from a family with no background of tertiary education, broad justice is better accommodated by adopting an average wage and taking account of all the possibilities in fixing an allowance for vicissitudes.

At a glance

Court

Decision date

Before

Source

Judgment (508 paragraphs)

Radovanovic bhnf Radovanovic v Cutter & ACT [2004] ACTSC 9 (19 March 2004)

Parties

Legislation Cited (2)

Cases Cited (19)