entangled in the seatbelt after the accident is correct, this could not
have happened unless he was wearing a seat belt."
31.
However, this assumes that what was causing the plaintiff's legs to be
held together suspended in the air was the seat belt. Nevertheless
assuming
the defendant's observation is reliable, it is difficult to imagine what else
it could have been. But, if the plaintiff's
feet had been entangled in the
seat belt, it is improbable that, when the vehicle was righted, his feet would
not have been still
caught up. If this had happened it is remarkable that
this would not have been noticed by either of the Dingles. Indeed Mrs Dingle
observed that his legs "appeared to slide out" when the car was rolled over.
(Tr.p154).
32. Both experts were asked about the possibility
that the plaintiff may have
come out of the seat belt during the rollover. Mr Hall (Ex P14) states:
"One possibility is that
his shoulder came free of the seat belt during
the rollover, allowing some slack to be given to the lap belt, causing
him to
slide out of the rear of the vehicle."
33. However in cross-examination, Mr Hall conceded (Tr. p118) that given the
dynamics of
the rollover and the position in which the plaintiff was found
after the accident, that he could not have been found in this position
after
the vehicle came to rest if he had been wearing the seat belt. When recalled
for further cross-examination, he repeated this
opinion (Tr. p186). Mr
Gillies considered that it was improbable that the plaintiff could have
escaped from the seatbelt, had he
been wearing one, in the circumstances
(Tr.pp224-225). I accept these opinions.
34. I conclude from this that it is unlikely that
the plaintiff was forced
out of the belt by the dynamics of the accident. I prefer the evidence of Mr
Gillies on this point. Mr
Gillies observed that in order to be forced out of
the belt towards the roof, the knees would be required "to in effect bend
backwards
to curve the other way to go through underneath the belt." (Tr.
p224) I consider that the defendant's observations concerning the
position of
the plaintiff's legs after the accident are not reliable. I find that the
plaintiff was not forced out of the belt,
assuming it was functioning
properly.
35. I consider that it is most unlikely that the plaintiff undid the belt
himself. The main
evidence which suggests this possibility is the position
the plaintiff was in when found by Mr and Mrs Dingle. Professor Simpson's
evidence was that the plaintiff's injuries were such that this possibility was
unlikely, but not impossible, based on the eyewitness
accounts which suggested
that his brain functions at that time were relatively well preserved.
(Tr.p258). The defendant's account,
as contained in her answers to
interrogatories (Ex P3, annexure A, paras 8, 9 and 10) suggest that the
plaintiff was not conscious
until after the Dingles arrived on the scene, and
she did not see him moving. Mr Gillies' opinion was that the plaintiff ended
up
in the foetal position because the vehicle's last movement, after ending up
on its roof, was to turn slightly on the axis of its
roof causing the
plaintiff (who had fallen out of the hatch window as the vehicle came from its
side to the roof), to be wrapped
around the corner of the window. (see
Tr.p214). Mr Hall's opinion as to the last movements of the vehicle before it
came to rest
were consistent with Mr Gillies' theory. This is a reasonable
and plausible explanation of how the plaintiff ended up in this position.
I
am satisfied on the balance of probabilities that the plaintiff did not undo
his belt after the accident. The positioning of the
release mechanism of the
belt makes it very unlikely that the belt could have been released
accidentally during the accident. It
is possible, but unlikely, that the
plaintiff deliberately undid the belt in the interval of time between the
vehicle leaving the
bitumen surface and the vehicle coming to rest on its
roof. I am satisfied, on the balance of probabilities that the plaintiff was
not wearing his seat belt at the time of the accident.
36. The plaintiff contended that, notwithstanding this finding, I ought not
to find that the defendant had proven that the plaintiff's injuries would not
have happened at all, or would have been substantially
diminished. Although
the plaintiff suffered injuries other than his head injury, notably some
cracked ribs and a fracture to the
right scapula, it was not suggested that
these injuries were of any significance for the purposes of this argument.
The evidence
does not satisfy me that had the plaintiff worn his belt, these
injuries would not have occurred; nor were they, medically, of any
real
significance. These injuries could have been inflicted at any part of the
rollover and were consistent with being caused by
loose or loosened objects
from within the vehicle. The argument of counsel for the defendant was that
had the plaintiff worn his
belt, it is inconceivable that he would have
suffered such massive fractures to the head as he in fact did. Counsel for
the plaintiff
contended that not only were such fractures possible in the
circumstances, but highly likely.
37. In order to deal with the parties'
contentions it is necessary to
consider the evidence in some detail. The experts are agreed that the
fractures must have been caused
by the front of the head suffering a heavy
blow by coming into contact with a very hard object. Professor Simpson
considered that
the fractures were probably caused by a single blow to the
left side of the forehead, although he could not rule out the possibility
of
there being multiple impacts (Tr. p246, 251-252). He considered that the
object was possibly a "vertical structure", and "something
fairly hard." The
plaintiff's blindness was caused at the same time and as a direct consequence
of this blow or blows. There is
no dispute that the horrific consequences to
the plaintiff of the accident are causally related solely to this injury.
Professor
Simpson saw no signs of a "dragging injury". He considered that the
wound at the primary fracture sight was probably "something
like an angle edge
which shattered in the frontal bone." (Tr. p251). He described the force
required to shatter the skull as being
"about 4 or 5 kilo-newtons which is
something like a blow with a sledgehammer". There is no evidence as to what
this means except
in general terms; he described the force as "very severe".
He was asked if it was possible to express the force in terms of the forces
of
gravity. He said that it was wrong to try to equate impact force with
gravitational forces and not correct to try to deduce from
impact force to
acceleration (the measure of gravity) (Tr. p254). Notwithstanding those
observations he made some observations in
which he did make comparisons with G
Forces. He conceded he was not qualified to offer an opinion as to the
likelihood of such an
injury if the forces of gravity applied to the car did
not exceed 5Gs. He observed that the forces of the impact to the head was
related to the time over which the force is exercised and whether the head is
free to move at the time of impact or not (Tr. p257)
but this was not further
explored. The end result is that based on Professor Simpson's evidence, I am
satisfied that the injury
could well have been caused by a single blow to the
left forehead by the head impacting with considerable severity with a hard
object,
probably with an edge, and probably a vertical structure relative to
the head at the time of the impact. I am unable to make any
findings which
are more precise than this; in particular I consider that no conclusions can
be drawn as to the amount of force required
by making comparisons with the G
forces of the vehicle during the rollover.
38. The plaintiff submitted that the head injury was
caused by the
plaintiff's head striking the edge of the hard roof rail on the left side of
the vehicle. As the vehicle moved in
its clockwise yaw across the road, the
plaintiff would have been forced to the left hand side of the vehicle. The
plaintiff would
probably have turned his head to the left to look towards the
direction of travel, and his natural instinct would have been to lean
away to
his right. The plaintiff's head struck the roof rail when the vehicle
tripped, as its near side wheels dug into the dirt
verge. Because the
plaintiff was 6' 3" in height, his head, immediately before the trip, was
likely to have been in about the centre
of the vehicle. The sudden
deceleration of the vehicle, caused by the trip, generated a sufficient
difference in momentum between
the vehicle and the plaintiff to cause the
plaintiff's head to hit the roof rail with considerable force. Mr Riley QC
submitted
that the evidence did not support the conclusion that the
plaintiff's head struck any object outside of the vehicle, such as the
ground,
nor any object which may have intruded into the vehicle through the window;
nor did the evidence support the conclusion that
the plaintiff's head injury
was caused by the roof of the vehicle either during the roll-over or by the
roof landing onto his head
after the plaintiff had fallen through the hatch
window. The plaintiff submitted that the evidence supported the conclusion
that,
had the plaintiff been wearing the belt, it would not have offered any
significant restraint to the head and upper torso from sideways
or lateral
movement. Consequently the head injures would have occurred in precisely the
same manner, whether or not the plaintiff
was wearing a seat belt.
Alternatively Mr Riley QC submitted that the defendant had not demonstrated
that this sequence of events
was unlikely or less likely than any other
hypothesis. I accept this alternative submission.
39. The opinion of both experts was
that the only object inside the vehicle
sufficiently hard to have caused a fracture to the skull was a roof rail. Mr
Gillies suggested
that the roof rail to the hatch window was also a
possibility but was unable to express any degree of preference for one as
opposed
to the other. (Tr. p261). The opinion of Mr Gillies was that the rear
hatch window was probably broken when the vehicle landed on
its roof, after
the initial trip. I accept that opinion. Both experts were agreed that the
vehicle first landed on its roof, then
onto its wheels, then onto its left
side, and finally onto its roof, assuming the vehicle rolled one and a half
times. Both experts
agreed that the vehicle could have rolled either one and
a half times or two and a half times, and both regarded both possibilities
as
equal.
40. The vehicle was also moving clockwise through the roll(s). The
description of the roll(s) does not support the conclusion
that the plaintiff
was ejected through the hatch window. I find that he fell through it, after
the vehicle came to land on its roof
at the end of the last part of the
roll(s). The evidence does not suggest that this was the time he suffered his
head injury. I
consider an impact with the ground is a most unlikely
explanation. The photographs taken at the scene (P12) show that the ground
was soft and sandy. A fall to the soft sandy ground does not seem likely, and
does not fit Professor Simpsons' description of the
kind of object likely to
have caused this injury. There is a possibility he may have hit a rock, but
if this occurred, it was more
likely to have occurred when the vehicle fell
onto its side.
41. There is evidence that the nearside passenger window may have been
open.
Given the plaintiff's height, and the absence of any dragging injury to the
face I think it is more likely that his head hit
the side rail, probably at
the time of the trip when the vehicle was travelling at its greatest speed.
This was the opinion of Mr
Hall, which I consider to be very plausible. I
also accept Mr Hall's evidence, which was not successfully challenged, that
the seat
belt would have offered only minimal restraint to the plaintiff's
head and upper torso when lateral forces were applied. The main
difference in
opinion between the experts is that Mr Gillies' view was that the plaintiff's
head would have been too close to the
side rail, given the forces acting upon
his body moved him to the left, to generate sufficient difference in momentum
to cause such
a severe head injury (see Tr.p210). However Mr Gillies did not
deny that the natural reaction of a passenger in the plaintiff's
position
before the trip would have been to lean to the right (Tr. p273); nor did he
suggest that such a movement was not possible.
Mr Hall considered that "the
potential for very heavy impact to the head at the roof rail is identical,
whether the person is belted
or unbelted." It has not been demonstrated that
this opinion is wrong. Another possibility canvassed at the trial was that
the
injury may have occurred by the roof falling onto the plaintiff's head
after he fell through the hatch window. Neither expert thought
this
explanation very likely. The flat surface of the roof is not consistent with
Professor Simpson's evidence: see also Mr Hall
(Tr. p172).
42. I conclude that the defendant has not established on the balance of
probabilities that had the plaintiff been wearing
his seat belt that his
injuries would not have occurred or would have been less severe.
43. Accordingly I am unable to find that
the defendant has established, on
the balance of probabilities that the plaintiff was guilty of contributory
negligence which caused
or contributed towards his injuries.
3. DAMAGES
3.1 The Plaintiff's pre-accident life
44. The plaintiff was born in Detroit, Michigan,
in January 1937. His parents
were teachers. He married the defendant whilst he was an undergraduate
sociology student at Wayne
State University, Detroit, in about 1956. The
plaintiff and the defendant had three children; Ann, born 11 September 1956,
now an
environmental chemist; Dr John Charles, born 18 January 1958, now an
assistant research scientist with the Bio-mechanics and Ergonomics
Faculty of
the University of Iowa; and Bill, born 5 December 1960, an industrial
engineer.
45. The plaintiff graduated with a B.A.
in Sociology in 1960. Between
1956-61 he was employed as a quality control supervisor and carboloy products
and assembly line operator
for Chrysler. In 1961 he obtained employment as a
welfare supervisor for Wayne County, Michigan, a position he held until 1965.
Between 1965-68, he was employed as Juvenile Court Officer at Wayne County.
Whilst working for the County he had a second job as
a college instructor at
Macomb College, Mount Clemens, Michigan.
46. In 1968 the plaintiff and his family moved to Santa Barbara,
California.
They purchased a home at Montecito, nearby. The plaintiff obtained employment
as an Adult Probation Officer for Santa
Barbara County, a position he held
between 1968-1980. In the meantime, the defendant, who had obtained
qualifications as a teacher,
pursued that career.
47. In 1980 the plaintiff began a Master's Degree in Sociology at the
University of California. He obtained
this degree in July 1982. He then
pursued his doctorate, obtaining his Ph.D. in Sociology in February 1984. It
normally takes 6
years to obtain both of these degrees. During this period
the defendant's income supported both parties; in addition, the plaintiff
was
engaged in investing in real estate, stocks and bonds.
48. At the age of 47, the plaintiff obtained his first academic position
as
an Assistant Professor at South-Eastern Louisiana University, Hammond,
Louisiana, in 1984. He and his wife moved to Louisiana,
the defendant taking
leave of absence from her teaching position. The plaintiff was interested in
the sociology of gambling. In
1985 his first book on that subject, The
Degenerates of Lake Tahoe: A Studi of Persistence in the Social World of
Horse Race Gambling
was published. After a year at Hammond, the plaintiff
obtained a position as an Assistant Professor at the University of Nevada,
Reno, in 1985. The defendant was unable to accompany him. She returned to
their home in Montecito to resume her teaching career.
49. The plaintiff and the defendant remained very close. They communicated
regularly by phone. The plaintiff flew to Santa Barbara
each Thursday to
spend as much time as he could with the defendant, returning to Reno on the
following Monday. They were devoted
to each other, and had an enjoyable
sexual relationship. The defendant was interested in the plaintiff's work and
assisted him in
his research. They enjoyed spending days in libraries
together. She assisted him in developing his public speaking skills, and
to
overcome a slight stammer. The plaintiff's love for horse racing and the
study of gambling took them often to the track. They
enjoyed dinner parties,
conversation, and having their children and friends visit them.
50. They travelled extensively, although
frugally. They had been to every
state in the USA, Canada, Mexico, the Carribbean, New Zealand, Fiji and
Australia.
51. The plaintiff
also led an active physical life. He performed
callisthenics daily, swimming usually twice weekly, bike-riding, camping,
walking,
running, hiking in the mountains, and occasionally went skiing.
52. He was physically very fit. Indeed he had climbed Ayers Rock
immediately
before the accident. He enjoyed going to the movies, football and basketball
games, and to the races.
53. In 1988 the
plaintiff was promoted to the position of Associate
Professor. In the same year, his second book, Gambling Without Guilt: The
Legitimation
of an American Pastime was published. The plaintiff was a
prolific writer. He had had many articles published between 1985 and
the time
of his accident in 1988, mostly in respectable journals. By this time he had
developed both a national and international
reputation as one of the more
prolific and respected scholars in the field of the sociology of gambling. He
received invitations
to speak at conferences. He enjoyed this lifestyle and
his work immensely. It gave him intellectual stimulation, national and
international
recognition, work satisfaction and good remuneration. By the
time of his accident he had almost completed a text book, Probation
and
Parole. Because of the accident, this was never published.
54. Around the home, the plaintiff did some yard work and would
clean up the
kitchen after dinner parties. The defendant did most of the housework.
55. The plaintiff enjoyed lecturing, and was
well-regarded amongst students
and academics at the University of Nevada. He was on track to obtain a
fully-tenured position as
a full Professor in the near future. Although his
specialty was a narrow one, with only a handful of established authorities in
it, of which the plaintiff was one, it was an area of increasing interest to
the commercial world. Governments and private enterprise
sought advice from
experts in this field on an increasing basis, as more gambling facilities were
being offered, or proposed to be
offered, to the public in various parts of
the world.
56. Clearly the plaintiff had an impressively enjoyable lifestyle, with much
to look forward to in the future, including strong prospects of further
personal advancement.
3.2 Injuries sustained and treatment
received as a consequence of the
accident
57. The immediate injuries are described in the report of Dr Parameswaran, (Ex
p6) some
of which I have already mentioned. In addition his nose was severely
lacerated, he had severe peri-orbital haematomas on both sides,
and
retro-orbital haematomas on both sides. His pupils were dilated in a fixed
position. The eye-balls protruded and his lids could
not be closed.
58. After he had recovered sufficiently from shock, he was operated upon at
the Alice Springs Hospital. The depressed
fractures were elevated, the wounds
to the nose and lip cleared and sutured, and the left eyelids approximated.
Post operatively
he was stabilized before transference to the neurosurgical
centre of the Royal Adelaide Hospital, under the care of Professor Simpson.
59. Upon arrival at the Royal Adelaide Hospital, the plaintiff was still
unconscious. On 22 July, Professor Simpson explored the
head wound and
evacuated a surface clot in the extradural space. A tracheostomy was
performed. Over the next two days, his conscious
state slowly improved. He
had a serious degree of paralysis on the left side. On 25 July 1988 a tube
was inserted into the brain
to drain off fluid to control high intra-cranial
pressure. This was successful. He developed pneumonia but recovered. On 11
August,
an extensive operation was carried out by Professor Simpson and Mr
David J David, an eminent craneo-facial surgeon. The damage to
the base of the
skull was repaired, tissue grafted, and fractures of the jaw bones put into
position and fixed with plates. The
craneo-facial fractures were reduced and
internally fixed. It is not necessary to go into the full details of this
lengthy and complicated
procedure. Those details are to be found in Exhibits
P23 and P25, (the reports of Professor Simpson and Mr David), which I accept.
He received treatment also from Mr Tomich from the Ear Nose and Throat Clinic,
J E Gilligan from the Intensive Care Unit, Dr Thomas
from the Clinic
Biochemical Department and from Dr. M. Hammerton of the Ophthalmological
Clinic. At this stage he still needed secondary
surgery to recontour his
face. He was left completely blind, with left hemiplegia and diabetes
insipidus. Each of these conditions
were the direct consequence of the
fractures of the skull. He responded at that stage by writing notes to his
wife. He was able
to respond to orders with his right arm and leg, but not
his left.
60. In the meantime, the plaintiff's sons had flown to Adelaide.
About two
weeks after the accident, Dr John C Rosecrance began to provide physical
therapy to the plaintiff. This was an area in
which he had expertise, both
academically and practically. He taught the defendant and his brother how to
position the plaintiff
to avoid contractures. The three of them worked in
shifts, doing a range of motion exercises, talking to the plaintiff, and
generally
caring for him. The plaintiff lapsed into and out of consciousness.
Some of the procedures he endured were very painful. The family
members,
particularly the defendant, spent many hours with him daily. They were
encouraged to do so by Professor Simpson, and to
collaborate with the
hospital's own team of physiotherapists. Professor Simpson said that he
believed that the family were helpful
in the plaintiff's recovery,
particularly as he was blind, and to assist in his making a good psychological
recovery. He regarded
this participation as a necessary part of his
treatment, and greater in time and quality than one normally would expect from
family
members. This evidence was supported by Mr Loveridge, a clinical care
registered nurse employed by the hospital and who looked after
the plaintiff
at the time. I accept this evidence which was not contested. By the
beginning of September the plaintiff had recovered
sufficiently for him to be
transferred to an appropriate rehabilitation centre in the United States, and
he was transferred to Rancho
Los Amigos, Los Angeles, under the care of
Professor J Perry on 9 September.
61. Whilst at Rancho Los Amigos Dr John C Rosecrance
and his wife, who is
also a physical therapist, visited the plaintiff regularly. They provided him
with physical therapy to prevent
contractures. The therapy was quite painful,
but necessary to ensure maximum use of his limbs. The plaintiff began
hallucinating.
Tests there revealed diabetes insipidus, hypothyroidism and
difficulty with bodily temperature control. Dr Rosecrance became dissatisfied
with the level of care available and in October 1988 the plaintiff was
transferred to Long Beach Memorial Hospital, Los Angeles,
a large acute care
hospital with a rehabilitation wing for patients with head and brain injuries.
Whilst there he developed heterotopic
ossification of the left hip, and sleep
apnoea. Tests revealed decreased hearing on the right side. After a further
period at Long
Beach Memorial Hospital, Dr Rosecrance decided to relocate the
plaintiff to Kentfield Hospital near San Francisco. This was near
to where Dr
Rosecrance lived, and it enabled him to visit the plaintiff more regularly and
frequently. He was transferred to Kentfield
on February 16, 1989. During his
stay there he developed a decubitis ulcer on his left heel, caused by being
constantly bed-ridden.
Dr Rosecrance made special foam boots to prevent the
bony parts of the heel from coming into contact with the mattress, and he
still
wears them. The plaintiff began to learn to sit up and transfer from
his bed to a wheelchair, with the assistance of a certified
nursing assistant
(CNA). The plaintiff became withdrawn and depressed, and developed
contractures of the left hip, knee, shoulder
and elbows. This required
intensive physical therapy over the next year to correct. The extreme pain of
this therapy made the plaintiff
abusive and resentful. The plaintiff
perseverated frequently.
62. For a considerable period he denied his blindness. It was thought
he had
partial panhypopituitarism. On July 19, 1989, the plaintiff was transferred
to the Rehabilitation Institute at Santa Barbara,
where he came under the care
of Dr Robert S Djergaian, the Associate Medical Director of the Institute, and
Medical Director of the
Brain Injury Program. The basic goals of the
Institute are to optimise medical management, return patients to the highest
possible
level of function, educate patients and their families about the
specific disabilities, provide emotional support, and, wherever
possible, to
return patients to their homes and families. At this stage the plaintiff was
still receiving all food and medication
via a gastrostomy tube. He was
incontinent in both bowel and bladder. He could transfer with minimal
assistance, and ambulate short
distances with physical assistance. His self
care activities needed moderate to maximal assistance. His level of alertness
varied.
He fatigued easily. His attention was limited and he was irritable.
He could follow some simple instructions, but not others.
He could give his
name, but was not oriented to time or place. He had limitation of movement,
especially at the shoulder, knee and
ankle, and he had pain throughout the
left upper and lower extremities. His left upper extremity was non-functional
and his right
lacked co-ordination.
63. Dr Djergaian directed a team of professionals including a physician,
physical therapist, occupational
therapist, speech therapist, rehabilitation
nurse, therapeutic recreationist, neuropsychologist and social worker. He was
treated
on a daily basis.
64. The plaintiff was discharged home on 1 June 1990. He had made a
significant recovery, but still required
significant assistance for all
activities. He was able to take food and fluids by mouth. He required
minimal to moderate assistance
for transfers. He was not functionally
ambulating. He required assistance with dressing. He was using an external
catheter and
was continent. His attention had improved, but there was still a
lot of confabulation, limited attention and markedly impaired short-term
memory. He could not problem solve and was disoriented. He was frustrated
easily, did not tolerate pain well, and had intermittent
episodes of verbal
aggression.
65. The plaintiff was discharged to a rented home in Montecito which was
accessible for a wheel chair.
He needed 24 hours a day attendant care.
Various equipment was obtained for him, including a standing frame, exercise
bicycle, exercise
mat, bolster, upper extremity ergometer, transfer bench,
rolling commode, appropriate shower hose, grab bar, electric bed, external
catheters, electric blanket, as well as special clothing to help control his
body temperature.
66. After his discharge home, he
was treated as an outpatient. Further
problems ensued. He received psychiatric care for depression. In January
1993 he slipped
during physical therapy and sustained a fracture of the left
hip, requiring open reduction and internal fixation, followed by a short
period back at the Rehabilitation Institute between 15 and 26 January 1993.
At home he was provided with regular therapeutic activities,
including
aquatics. He started attending some classes at the local college. But he
still had significant memory impairment, difficulty
with new learning and
difficulty with all aspects of executive functioning. IQ testing showed a
significant drop to the average
level. He was diabetic, and required a
special diet. He needed to be prompted a lot. He drooled at the mouth and
still had periods
of incontinence.
67. In 1994 the plaintiff and the defendant purchased a new house in
Montecito which was wheelchair accessible.
The plaintiff still resides there
with the defendant. Some modifications have been made to the house to meet
the plaintiff's needs
and further modifications are proposed. The defendant
has, and still does, spend a considerable amount of her time caring for the
plaintiff and supervising the CNAs who look after him each day.
68. The plaintiff's condition has now stabilized to a considerable
degree.
Although there is still a slight chance of further improvement in the
immediate future, there is also a significant chance
that his condition will
also worsen in the long term, and perhaps to such a degree that he will
ultimately have to be permanently
institutionalised. The plaintiff has
permanent brain damage which has a number of important consequences to him.
In addition, he
is permanently blind. It is the combination of these
conditions which magnify the effects of his very significant disabilities,
all
of which are permanent. These disabilities include: double incontinence and
left-sided hemiparesis with weakness on his left
side. His left foot falls
down and his left arm will "wander" unless restrained; he is generally
confined to a wheelchair, but has
a limited capacity to walk with physical
assistance. His gait is markedly abnormal; he has dysphagia; hypothermia;
diabetes; chronic
aspiration; partial paralysis of the vocal chords; he
suffers from haemorrhoids, and, on occasions, from decubitus ulcers. He has
left sided facial weakness, which causes him to be dysarthric and have
diminished breath; he continues to have some pain in the head,
left arm and
left leg, although not as severe now as in the past. Nevertheless physical
therapy is on-going and still painful. He
has a painful dental condition. He
is unable to clean his teeth properly which causes gum disease. He will need
periodontal surgery
within 3 to 5 years, which may require hospitalisation.
He suffers from depression on a frequent basis. Dr Atkinson considers his
depression to be an organic affective disorder of moderate to severe
magnitude. At times he is labile and seeks emotional comfort
through the
intimacy he can achieve with the defendant. When at his best cognitively, he
is able to participate in planning to reduce
these problems. He is capable of
further improvement if given sufficient external cognitive support and
assistance by his caregivers.
His depression is severe. He had, as Dr Clarke
put it, "much to be depressed about. He is in the worst situation he could be
in.
He had much to lose in terms of his career, his family, his physical
condition and he has lost most of those things. I believe
that he is
generally aware of the level of his loss." (Ex P26).
69. Dr Djergaian believes that the plaintiff is able to appreciate
his
physical loss and, from time to time, the loss in his mind as well. I accept
these opinions. He is still often disoriented
in time, and sometimes speaks
as if he were still actively teaching. This was evident when he gave evidence
before me (Ex P78, p922).
70. The plaintiff's life expectancy has also been reduced. It was agreed
between the parties that the amount of reduction is between
5% to 10%. As at
the time of the trial, his future life expectancy is between 18 and 19 years.
If he is required to live in a nursing
home in the near future, this would
point to the lower of the two figures; if he were to remain at home, it would
point to a longer
life span. I am satisfied on the evidence of Dr John
Rosecrance, that the plaintiff will remain at home and be cared for either
by
the defendant, or should she be unable to do so, by Dr Rosecrance, for as long
as possible. I am satisfied that, on the balance
of probabilities, this
means, effectively, until his death. Nevertheless I consider that there is a
significant chance that the
plaintiff may be forced into institutional life
because of his condition deteriorating. I assess this chance at about 30%.
This
means that this chance could well affect his life expectancy by a small
margin in the future.
71. A significant loss to the plaintiff
is the inability to enjoy his
pre-accident occupation. The plaintiff has completely lost his earning
capacity, and with it, the
lifestyle he had enjoyed. In addition, although
the defendant has remained loving and devoted to him, he has lost the ability
to
enjoy marital relations for both physical and cognitive reasons, although
he still has sexual desires.
72. He has also facial weakness
and scarring, and is sensitive to his post
accident appearance.
73. On the other hand, life is not all gloom and doom. On days
when he does
not feel depressed, he maintains an interest and love for music. He is even
able to memorize the lyrics of some popular
songs, and sings them himself. He
enjoys listening to television, in particular, "Jeopardy", a popular quiz
show. He has an excellent
vocabulary, and better than average general
knowledge, despite his short term memory loss. His claim to be able to answer
most of
the questions on "Jeopardy" is supported by other witnesses. He seems
to get on reasonably well now with his caregivers, although
he says that he
would prefer not to have them. Miss Handelman, one of his attendants, is
close to him as a friend. Despite his
depression, he has maintained a
somewhat grim and dry sense of humour. He is taken ten pin bowling and
fishing occasionally, and
sometimes goes out to lunch. He enjoys occasional
outings to the movies, or to lectures. He likes to play games such as
"Trivial
Pursuit". He can still have intelligent discussion to some degree,
but the opportunities are limited. He is able to enjoy to some
degree now the
aquatic side of physical therapy in the pool at his home three times a week,
or at a pool elsewhere. Although he enjoys
this, he finds it boring doing
exercises. He participates in other physical therapy activities three times
weekly. These include
stretching, ranging and walking activities. He rides
his exercise bicycle daily. Yet he still requires 24 hour a day supervision.
He has not been able to learn braille. He is often depressed and withdrawn.
He is able to enjoy recorded books and magazines for
the blind. He attends the
Braille Institute and does various courses it runs; current events, sports and
travel for example. He
will need regular medical attention in the future,
particularly because of upper respiratory tract infections and urinary tract
infections
which are likely to require 10 days to a fortnight per year in
hospital. He now has a specially adapted van to enable him to be
transported
around without having to transfer him out of his wheelchair. On the other
hand, temperature control is still a major
problem for him, and it is
necessary for him to be in a controlled environment most of the time which is
warmer than most would find
comfortable. If his body temperature drops, this
affects his level of function and cognition. He becomes less active, more
withdrawn
and is not able to interact or communicate as well. This limits the
extent to which he is able to enjoy his residual capacities.
74. I have mentioned his short-term memory loss, but there is also a
significant loss of long-term memory. Dr Djergaian described
this loss as one
where he remembers "bits and pieces". His pre-accident memory is not
complete; what he has retained is not totally
as accurate as it should have
been; and it is variable in the sense that it is inconsistent from day to day.
His brain injury makes
it difficult for him to deal well with excessive
stimulation; it is hard for him to process a number of different stimuli
simultaneously.
Exposure to excessive stimulation would probably result in
withdrawal; he is not capable of complaining about this himself so as
to
reduce the level of his stimulation. Alternatively, excessive stimulation
could cause him to become very agitated, especially
verbally.
75. Because of his general lack of mobility, his bones have less calcium in
them; they are weaker, and they are more prone
to stress than in a normal
person. He has less lung capacity, and is more prone to pneumonia. Dr
Djergaian recommends more walking
to improve these conditions.
76. He does not sleep well, and tends to throw off his blankets at night. It
is not medically advisable
for him to use sedatives. He is also hyperphagic.
The brain injury has altered his ability to know when he has had enough to
eat.
Consequently he constantly wants food; this is controlled by dieting.
He finds the diets boring and does not enjoy his food.
77.
He attends church every Sunday, and since the accident has been
confirmed. He was not a regular churchgoer prior to the accident.
He appears
to have obtained some comfort from his religion.
78. There is no doubt that the care that he is receiving at home is
superlative, and because of that he is still able to enjoy his life to a
degree, and, I should say, to a far greater degree than
if he were to be
confined to a nursing home facility. I will deal with the comparisons between
his present life-style and what he
may come to expect in a nursing home
facility later. Suffice it to say that although he may continue to enjoy much
of what he is
presently able to enjoy, there is a significant difference in
quality of lifestyle, not the least of which will be an inability to
enjoy to
the same degree such of the pleasures of his marriage (particularly the
companionship) as are presently available to him.
There is a risk this may
yet occur, and I take that risk into account in assessing damages for his
future pain and suffering and
loss of enjoyment of life.
3.3 Damages for Pain and Suffering, Loss of Amenities and Loss of Expectations
of Life
79. In summary,
the plaintiff has had significant pain and suffering since the
accident, which has slowly diminished to a tolerable level and with
which he
is now able to cope. He will continue to have pain in the future, which at
times, will be significant. He has lost nearly
all, but not quite all, of his
amenities of life. Mr Riley QC likened his situation to that of a
quadriplegic. The analogy is apt,
given the compounding effect of his
blindness and his depression. The award of damages for this head of loss must
reflect the severity
of his loss. He was a high achiever with much yet to be
achieved; he has virtually lost it all, and is, for the most part, aware
of
his loss and the level of it. I bear in mind what he has endured in the past
(some 7 years) and what he will endure in the future,
given his probable life
expectancy. I bear in mind that his life has become deprived of all
usefulness, and he is condemned to suffer
much of it in depression, boredom,
frustration, emptiness, deprived sexually, and to a lesser degree,
emotionally, physically dependent
on others and in significant physical
discomfort. His capacity to divert himself by any interesting, worthwhile or
pleasurable activity
is fairly minimal. A moderate, conventional sum, must
also be allowed for his shortened life expectation. I bear in mind that my
task is to make a moderate assessment which is fair to both sides, and that
damages for negligence are compensatory and not punitive.
Making due
allowance for all of these matters, and taking into account contingencies,
favourable and unfavourable, I award the sum
of A$350,000 under this head. I
apportion this sum as to past pain and suffering and loss of amenities,
$140,000 and $210,000 for
the future.
3.4 Interest on non-economic losses
80. The plaintiff is entitled to interest on the amount of $140,000 from the
date
of the accident until judgment pursuant to s84 of the Supreme Court Act.
81. This Court has, since MBP (SA) Pti Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657 awarded
interest at the rate of 4% over the whole period: McAuliffe v Vogler
(unreported, Angel J, 29 May 1992); Thongbai v Northern
Territory (unreported,
available on SCALE, Mildren J, 3 November 1992). I see no reason to depart
from this practice in this case,
and no submission was made by the defendant
that I should.
82. Accordingly I award interest on the sum of $140,000 for the period
of 7
years 5 months at 4%. I calculate this to amount to A$41,533, and award that
sum.
3.5 Past Special Damages
83. Substantial
agreement has been reached between the parties on a number of
issues. First, I record that the dividing line adopted by the parties
between
the past and future damages under this head and for gratuitous services and
economic loss is 6 February 1995.
3.5.1 Medical
Expenses incurred by the plaintiff in Australia
84. These have been agreed at A$141,187.89. I award that sum.
3.5.2 Medical and
Household expenses incurred by the plaintiff in the USA
85. These have been substantially agreed. The items claimed are set out
in Ex
P75. In that exhibit there is a column for "Comments". The items which are
not in dispute have nothing in the "Comments"
column. The undisputed items
total US$1,796,159.12. I award that sum. I record that the parties have
agreed that I may award damages
in both Australian dollars and in US dollars.
This item is more appropriately awarded in US dollars.
3.5.3 Disputed Items
86. This
leaves two items which remain unresolved. The first is a claim for
US$79,750 for modifications to the plaintiff's present home.
There is no
dispute about the quantum of the cost of these modifications, or the need for
them (Tr. p1112-1113). The second is
a claim for US$360,000 for the
additional cost of providing a suitable home for the plaintiff in the future.
The parties agree that
the quantum of this cost is US$360,000 as claimed;
however the defendant submits that a deduction should be made for enhancement
of his estate.
87. The defendant denies liability for the full amount of both items because,
it is submitted, the plaintiff should
be accommodated, (as from the agreed
date, 6 February 1995), in a skilled nursing facility. However, the defendant
did not deny
that it was liable to pay some amount.
88. For the reasons which appear below, I am satisfied that the plaintiff's
damages should
not be calculated on the basis that he should be accommodated
in a skilled nursing facility.
89. By agreement, these items are to
be treated as a past expense even though
modification work had not been completed by the agreed date.
90. I should record also that
it was agreed that the plaintiff's pre-accident
home at Lemon Grove, Montecido, was unsuitable for the plaintiff after the
accident;
and that it was not appropriate to perform a retrofit to that home
to make it suitable (Tr. p78, p1113). The additional sum of US$360,000
is the
difference between the purchase price of US$660,000 for the plaintiff's
present home at Monte Vista, Montecido, and the sale
price of the former home
at Lemon Grove, US$300,000. The plaintiff and the defendant jointly owned or
own these properties. It is
agreed that these sums also represent the values
of the respective homes. It is agreed that it was necessary for the
expenditure
of the additional $360,000 to be incurred to provide the plaintiff
with a suitable home.
91. It is the defendant's contention that
the difference between the prices
is not recoverable because it would result in a benefit to the plaintiff or
his estate at the end
of his life. Accordingly it was submitted that
allowance for the present value of that benefit had to be made in the award.
Further,
as the property was jointly owned, the plaintiff could recover only
his half share of the capital outlay, appropriately adjusted
to make allowance
for the present net value of that benefit. Further, the defendant submitted
that a further allowance had to be
made to cover the possibility that the
plaintiff may be forced into a skilled nursing facility, at some time in the
future. Calculations
were prepared making, it was submitted, appropriate
adjustments depending on whether the defendant would become so
institutionalised
within one year or 10 years.
92. In support of this contention, counsel for the defendant referred me to a
number of authorities,
which he submitted were all one way. First, I was
referred to Frankom and Anor v Woods (Court of Appeal, New South Wales,
unreported,
1 October 1980), where Glass JA, with whom Hope JA agreed, said
that it is proper for the defendant to require the plaintiff to bring
into
account any capital gain which may enhance the value of his estate and which
may have accrued to him in compensating him for
his needs. In that case no
such allowance had been made by the trial judge in respect of expenditure of
$70,000 to adapt a house
to meet the plaintiff's special requirements. The
Court of Appeal held that no error had been made by the trial judge. Only
some
of the improvements would have represented added capital value, viz., a
pool, garage and airconditioning. Other improvements such
as concrete ramps,
special switches and the like would have represented liabilities. The Court
found that only $25,000 of the expenditure
would have represented a capital
asset in the plaintiff's hands at present. The present equivalent of that sum
over the plaintiff's
lifetime was only $2,200; however it only had that value
upon the assumption that the value of the additions was retained over the
plaintiff's life. Having regard to the evidence concerning the life span of
the shed, airconditioning and the pool, the Court held
that it had not been
demonstrated that any credit should be given. The defendant distinguished the
actual result in that case on
the following bases. First, the enhancement of
value does not come from the cost of alterations. It was not suggested that
the $79,750
spent on alterations added to the property's value. I note a
similar approach was taken in Marsland v Andjelic (1993) 31 NSWLR 162 at 176.
93. Next the defendant referred to Roberts v Johnstone (1988) 3 WLR 1247. In
that case the award of damages included a sum of 28,800 pounds for the cost of
purchasing and converting a bungalow suitable
for the plaintiff's needs. The
Court of Appeal held that the damages to be awarded should not be the net
capital cost of the purchase,
but the additional annual cost over the
plaintiff's lifetime of providing the home; that the annual cost was to be
taken at 2% of
the net capital cost; that no reduction was to be made for any
betterment not required to meet the plaintiff's needs; that the full
capital
cost of any conversion works to adapt the property were to be awarded save in
so far as they enhanced the value of the property.
The end result was that
the plaintiff recovered 21,920 pounds in respect of the purchase of the
bungalow and 28,284 pounds in respect
of that part of the cost of converting
it which had not enhanced its value. The facts were that the net difference
between the capital
costs of the pre-accident and post-accident homes was
68,500 pounds, and the cost of conversion was 38,284 pounds. This totalled
106,784 pounds from which 10,000 pounds was deducted because the plaintiff
conceded that this represented the increase in value to
the home brought about
by the cost of the improvements, thus reducing the total claim to 96,000
pounds. The trial judge reduced
that sum, first by 10% to reflect the "Rolls
Royce" elements, i.e. the new house was in a more favoured area, and was much
pleasanter
than it need be; and secondly he took one third off the sum so
arrived at, 86,400 pounds, "as the increased charges element." The
Court of
Appeal held that no deduction for betterment should be made once it was
established that the purchase of the new home was
reasonable in the
circumstances. The Court then applied the method of computation approved in
an earlier decision, George v Pinnock
(1973) 1 WLR 118, using 2% tables. The
figure of 2% was chosen for much the same reasons, it was submitted, as the
High Court had chosen 3% in Todorowich
v Waller [1981] HCA 72; (1981) 150 CLR 402.
Counsel for the defendant submitted that the appropriate discount rate was
therefore 3%. It is instructive to consider the reasoning
of the Court of
Appeal. At pp1257-1258, Stocker, LJ, who delivered the judgment of the Court,
said:
"It seems to us, however,
that where the capital asset in respect of
which the cost is incurred consists of house property, inflation and
risk element
are secured by the rising value of such property,
particularly in desirable residential areas, and thus the rate of 2 per
cent
would appear to be more appropriate than that of 7 per cent or 9.1
per cent, which represents the actual cost of a mortgage loan
for such
a property.
We are reinforced in this view by the fact that in reality in this
case the purchase was financed by
a capital sum paid on account on
behalf of the defendants by way of interim payments, and thus it may be
appropriate to consider
the annual cost in terms of lost income and
investment, since the sum expended on the house would not be available
to produce
income. A tax-free yield of two per cent in risk free
investment would not be a wholly unacceptable one. Mr McGregor, for